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Thread: Constructive Dismissal, Legal Advice...please

  1. #21
    Diamond Member tec0's Avatar
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    Quote Originally Posted by BusFact View Post
    Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.
    I agree a 100% with everything you typed out. However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim.

    Thus allowing a person to become fearful "Regardless of guilt or innocence"

    Quote Originally Posted by Dave A View Post
    So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
    On what we all agree seems to be flimsy evidence?

    Personally, I don't think so - not without some level of investigation first.
    In all honestly I don't think they would have locked him up on "suspicion" alone. That said consider the following.

    As stated above the police officer may play it safe and lock him up.

    The employer might have been able to convince the police officer somehow.

    The fact is, there is always the possibility for things to go very wrong. And that in itself is a legitimate factor.

    In all honesty can this fact be ignored?
    peace is a state of mind
    Disclaimer: everything written by me can be considered as fictional.

  2. #22
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    Quote Originally Posted by tec0 View Post
    ... However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim.

    Thus allowing a person to become fearful "Regardless of guilt or innocence"
    It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.

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    tec0 (12-Sep-11)

  4. #23
    Diamond Member tec0's Avatar
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    Quote Originally Posted by BusFact View Post
    It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.
    I agree, fear is a powerful emotion and does play an active role in every decision we make. In my opinion I feel it might have been a deciding factor. Again I do not proclaim his innocence; I only wish to highlight the possibility.

    Regardless it makes for an interesting case and a good read for any employer.
    peace is a state of mind
    Disclaimer: everything written by me can be considered as fictional.

  5. #24
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    Ok, but he still made the decision to leave. It was his choice!

  6. #25
    Platinum Member sterne.law@gmail.com's Avatar
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    Constructive dismissal requires conditions that are unbearable and intolerable - this has not occurred.
    Resigning, pending a disciplinary hearing is not constructive dismissal.
    These two factors make a referral in terms of constructive dismissal, a route that is unlikely to be successful.

    Can it be referred as a normal dismissal? There is effectively no dismissal because there was a resignation, albeit under duress. To put it into perspective, where there is a settlement agreement, CCMA has no jurisdiction becuase there is a mutual agreement to termination, that is no dismissal. Many settlements are done under duress, "here is your cheque, which I will give you if you sign here" as an example. So despite the duress, the settlement stands and the employee needs to go to Labour Court for it to be struck down.

    It becomes hard to validate a persons defence that I was scared etc, if you now refer a matter, claiming duress, becuase in essence the employer still has the threat, of reporting to the police.

    I think it is a hard road, particularly to get past CCMA, but that does not mean do not refer the matter, you deal with road blocks when you get to them.
    The other angle is to try and argue that one is still an employee, based on the fact that the resignation is void and not valid due to the duress. How to refer it is a bit trickier, possibly as a mutual interest matter, and in that way try and get it in front of the CCMA and get a ruling.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  7. Thanks given for this post:

    tec0 (13-Sep-11)

  8. #26
    Platinum Member sterne.law@gmail.com's Avatar
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    There is some case law and grounds for constructive dismissal when an employee is told resign or face criminal sanction, more particulalry arrest,however it is extremely difficult to get the evidence for this situation. The normal requirements of teh conditions being intolerable and addressing the issues then fall away, so to speak. It now comes to the fact that the employer repudiates the contract and indicates as such. However as I say, it is VERY hard to prove what the employer said, and I would consider finding an alternative route to the constructive dismissal.
    Anthony Sterne

    www.acumenholdings.co.za
    DISCLAIMER The above is merely a comment in discussion form and an open public arena. It does not constitute a legal opinion or professional advice in any manner or form.

  9. #27
    Diamond Member tec0's Avatar
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    I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign. If the minutes have no record of this then what would the argument be for the employer and why else would the employee be asked to resign? Then perhaps an unfair dismissal? Because it was a dismissal in the end? OR will it be seen as a resignation only scenario?
    peace is a state of mind
    Disclaimer: everything written by me can be considered as fictional.

  10. #28
    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by tec0 View Post
    I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign.
    Unfortunately our OP has gone rather silent, but I've got a hunch this never got to a formal hearing stage.

    Without feedback, I think we're shooting in the dark trying to come to clear conclusions. An interesting excercise in the various possible scenarios, though.

  11. #29
    Diamond Member tec0's Avatar
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    Agreed, we will probably never know the truth.
    peace is a state of mind
    Disclaimer: everything written by me can be considered as fictional.

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