Results 1 to 8 of 8

Thread: CCMA AND ABSCONTION

  1. #1
    Gold Member Phil Cooper's Avatar
    Join Date
    Nov 2010
    Location
    Midrand
    Posts
    645
    Thanks
    0
    Thanked 170 Times in 118 Posts

    CCMA AND ABSCONTION

    We had a gardener who has worked for us some 14 years. Been fairly reliable in the past.

    In June, he developed a boil on his left leg by the knee.

    He went to hospital locally, but then reached the conclusion that he had had a curse put on him, and he had to return to Zimbabwe to see the Sangoma to lift the curse.

    He took his leave, was due back at work on 6th July.

    Silence. NOTHING.

    We SMSd him, asking what was happening. He ignored it.

    Follow up - also ignored.

    Followed up with a wording provided by an HR person who knows legal requirements, stating unless we heard from him by a set date we will take it that he is not coming back, he has absconded, etc.

    Ignored.

    Then sent next message that he was no longer employed as he has absconded.

    His brother, who lives just up the road, then came to us to object to us "firing" his brother. We pointed out that we had not fired him, but he had absconded. Action on his side.

    He suddenly re-appears last week, expecting to work for us. Three months later, as near as dammit is to swearing. Told him that we had told him that he had no job, etc. "But I was sick". Yes - but it is your duty to keep us informed, you ignored all the messages. Did you get the messages? Yes, he confirms it. (Brother pitching up also proves it?!

    Now we have a Con/Arb hearing scheduled at CCMA.

    The Commissioner called me, telling me he is told we have "fired" him.

    I told the facts, and his whole attitude changed - almost friendly. He asked, if due to the long service, we would consider making some form of payment. We offerd two months' salary.

    Declined by him - he wants about 8 months' salary .....

    Hearing date is set - but we are away in the Cape on the date it is set.

    Phoned to ask for postponement, to be told "we do not postpose Con Arb hearings",

    Then told we could email an objection to the date, and it "may" be considered....

    <SIGH>

    No wonder we don't want to employ staff...
    Last edited by Phil Cooper; 05-Oct-15 at 03:46 PM.

  2. #2
    Gold Member Phil Cooper's Avatar
    Join Date
    Nov 2010
    Location
    Midrand
    Posts
    645
    Thanks
    0
    Thanked 170 Times in 118 Posts
    Does anyone know the LEGALITIES of a CCMA summons?

    I received an SMS stating there is a hearing at 12.00 on 23rd October. NOTHING else.

    Hunting through the Web, it says that I must me advised in WRITING of the hearing: the complainant must issue me with a written form, by registered mail, fax or personally serving it, at least 14 days before the hearing.

    I have heard NOTHING - is just an SMS legal?

  3. #3
    Gold Member
    Join Date
    Jun 2010
    Location
    Johannesburg
    Posts
    843
    Thanks
    181
    Thanked 177 Times in 146 Posts
    Quote Originally Posted by Phil Cooper View Post
    No wonder we don't want to employ staff...
    +1 Phil. A while back our factory could have employed an extra 10 people during a spike in demand we had. No chance were we doing that, because we were pretty sure it was a spike that would turn down after a few months. Instead we turned away orders.

    Sorry I can't add any advice on the CCMA legalities.

  4. #4
    Full Member Jane123's Avatar
    Join Date
    Aug 2015
    Location
    port Elizabeth
    Posts
    27
    Thanks
    5
    Thanked 0 Times in 0 Posts
    I would attend the hearing if you can change your schedule or ask if you can send someone in your place... Am no fundie on HR but I do know that you followed the correct procedure for dismissal. I think the CCMA are obliged to have a hearing because the offer of 2 months salary was declined by your former employee (having it a guess). I would hope that come the hearing, they are just going to rule in your favour based on labour act with no payment being due as you did follow correct procedure and no compensation is due if employee absconds... Good luck!

  5. #5
    Gold Member
    Join Date
    Jun 2010
    Location
    Johannesburg
    Posts
    843
    Thanks
    181
    Thanked 177 Times in 146 Posts
    http://www.parent24.com/Family/Finan...orker-20150930

    This is a lengthy article describing a situation similar to the one faced by Phil. It unfortunately does not provide answers or details on the CCMA side of things. It does however elaborate on the ridiculously long and laborious process of what the employer is expected to do. Personally I think its a ridiculous expectation. Imagine if one had to go through this each time you wanted to change plumbers - we'd be drowning in sewerage.

  6. #6
    Site Caretaker Dave A's Avatar
    Join Date
    May 2006
    Location
    Durban, South Africa
    Posts
    22,648
    Thanks
    3,304
    Thanked 2,676 Times in 2,257 Posts
    Blog Entries
    12
    Quote Originally Posted by Phil Cooper View Post
    I have heard NOTHING - is just an SMS legal?
    Given that's how you were serving notices to your (ex) employee, probably not the smartest move to challenge the legality of an SMS notice

  7. #7
    Platinum Member sterne.law@gmail.com's Avatar
    Join Date
    Oct 2009
    Location
    Durban
    Posts
    1,332
    Thanks
    38
    Thanked 566 Times in 413 Posts
    Blog Entries
    7
    A couple of points.
    the SMS from the CCMA is their notifying you of the hearing.
    As I understand the employee ha snot served proper notice, therefore there is a challenge there. However, if you do not attend, you would be applying for a rescission. If you attend you could (a) have employee forced to start again (b) settle the issue.
    If you do not want to ignore (and apply for rescission) then you need to object to the arbitration commencing after the conciliation (in the event of failure).
    You have fired him, because your sms says so. Therefore the challenge is valid to the extent that is he guilty of absconding, there was no hearing.
    the common defence is to say ok, he comes back to work 9no payment as NO work NO pay) but is placed in a hearing immediately for AWOl, not contacting etc, etc.

    In terms of the date, you write requesting a postponement putting up the proof of the Cape Town trip. Make sure it is submitted at least 7 days before. State that you have received no documentation, the trip was planned and such.
    And don't forget the objection to the con/arb


    Your sms to the employee are valid. SMS are written communications given the ECT act and evidence amendment act.
    In terms of the actual events.
    Absconding requires that the employee had no intention of returning.
    In other words if an employee is sick, in jail etc, then there is an intention and he cant have absconded.
    There are 2 paths of action -
    (1) - A hearing for absconding, making all efforts to inform employee. Hearing held in absence
    (2) - The employment is suspended, and if employee returns a hearing is held - for AWOl, no procedures (not calling) ect
    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.

  8. Thanks given for this post:

    tec0 (11-Oct-15)

  9. #8
    Gold Member Phil Cooper's Avatar
    Join Date
    Nov 2010
    Location
    Midrand
    Posts
    645
    Thanks
    0
    Thanked 170 Times in 118 Posts
    Thanks!

Similar Threads

  1. Need some advice on a ccma case please.
    By Jacques#1 in forum Labour Relations and Legislation Forum
    Replies: 11
    Last Post: 29-Mar-14, 12:36 AM
  2. CCMA Help needed please.
    By Just Gone in forum Labour Relations and Legislation Forum
    Replies: 4
    Last Post: 28-May-12, 01:26 PM
  3. CCMA - questions
    By Pap_sak in forum Labour Relations and Legislation Forum
    Replies: 47
    Last Post: 11-Feb-12, 08:07 AM
  4. [Article] How the CCMA Can Help You in South Africa
    By BBBEE_CompSpec in forum Labour Relations and Legislation Forum
    Replies: 0
    Last Post: 27-Nov-09, 11:35 PM
  5. CCMA newsletter
    By duncan drennan in forum General Business Forum
    Replies: 0
    Last Post: 14-Feb-07, 10:37 PM

Did you like this article? Share it with your favourite social network.

Did you like this article? Share it with your favourite social network.

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •