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Thread: Disciplinary Hearing Unfairness

  1. #11
    Platinum Member sterne.law@gmail.com's Avatar
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    In terms of the backdating, so to speak.
    Waiver is a defence whereby if a company failed to take disciplinary action timeously it is considered that they waived their right to take action.
    The test is -
    When did the company know about a potential misconduct, and
    what did they then do.

    As an example - If i discover potential fraud but take 4 months to investigate, that is not a waiver, as, by acting I show an interest in exercising my right.
    If I know of a misconduct, do nothing, but after 4 months institute a hearing, this mayconstitute a waiver.

    The test of waiver for you, is if the company knew and then failed to act. It brings with it, given your case, the potential argument of tacit acceptance.

    As to the Directors duty, while they may be at fault, this is not a defence for you, per se. The question is was there a rule and did you break it.
    There is certainly an argument, that when the director paid, it constituted consent.
    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.

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    yes I captured the payments, and it is not my responsibility for authorization of payment.
    The HR calculated the figures and I was part of the meeting with the controlling members (not the director) and other staff members to discuss the financial situation of paying the bonuses which by the way is a statutory obligation under the MIBFA main agreement.
    I was employed as a financial manager, but my duties and responsibilities were reduced in 2008 to that of a bookkeeper.

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    Thanks Anthony,
    I do not think there were any rules, its a small company, and I always believed the directors would check all payments before final authorization. Also my work was transparent, documentation was always available.
    The possible misconduct came about at the beginning of this month, it is the new director responsible since February who was looking into my situation. (I still believe there is a conspiracy to discredit my ability). However, the old director had access to all my work throughout the previous years and never queried my honesty.
    In all honesty I can prove that I was not fraudulent in any of my work matters.

  4. #14
    Diamond Member Justloadit's Avatar
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    Quote Originally Posted by Laura7 View Post
    yes I captured the payments, and it is not my responsibility for authorization of payment.
    The HR calculated the figures and I was part of the meeting with the controlling members (not the director) and other staff members to discuss the financial situation of paying the bonuses which by the way is a statutory obligation under the MIBFA main agreement.
    I was employed as a financial manager, but my duties and responsibilities were reduced in 2008 to that of a bookkeeper.
    From the information provided, other staff calculated and instructed you to do the data capturing of the wages, leave pay and bonuses. The reason for the meeting with staff members was probably to discuss the financial situation the company would be in to be able to honour the relevant payments. It seems to me that you acted according to the requirements set out, and whether the amounts were correct or not is out of your scope, as this falls in the realm of the HR and wage clerk. I think that you have proceeded correctly with your duties. The question really is with what is going to be raised at the hearing. It seems to me that the full information has not been disclosed to you at this time, and you may have been fed a red herring.
    Victor - Knowledge is a blessing or a curse, your current circumstances make you decide!
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    Silver Member bones's Avatar
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    Quote Originally Posted by Justloadit View Post
    From the information provided, other staff calculated and instructed you to do the data capturing of the wages, leave pay and bonuses. The reason for the meeting with staff members was probably to discuss the financial situation the company would be in to be able to honour the relevant payments. It seems to me that you acted according to the requirements set out, and whether the amounts were correct or not is out of your scope, as this falls in the realm of the HR and wage clerk. I think that you have proceeded correctly with your duties. The question really is with what is going to be raised at the hearing. It seems to me that the full information has not been disclosed to you at this time, and you may have been fed a red herring.
    i agree with you on this one that said
    i would ask for all records from your
    past year and show that you did your
    duties as specified just remember in
    any hearing make sure you record
    everything if things go badly you have
    recording on why it did and if it was
    fair or not and can continue to seek
    professional help with the facts in
    your pocket.
    seek professional help with anything and everything never take advice from me

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    Thank you, and I will make certain to record the proceedings and although I can prove I acted responsibility, I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct. I will post a summary of the hearing and seek further advise.

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    Silver Member bones's Avatar
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    Quote Originally Posted by Laura7 View Post
    Thank you, and I will make certain to record the proceedings and although I can prove I acted responsibility, I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct. I will post a summary of the hearing and seek further advise.
    best of luck to you
    seek professional help with anything and everything never take advice from me

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by Laura7 View Post
    I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct.
    If they do this, immediately request a postponement so that you are afforded an opportunity to prepare for the new allegations. If they deny your request and attempt to dismiss you for charges that they never included with their original hearing notice, you may have grounds for unfair dismissal due to procedural irregularities (note that broadening the charges and denying a postponement is not automatically unfair and unlawful - e.g. if doing so does not substantially change the original charges).

    Founder of Growth Surge - Helping entrepreneurs create more wealth and enjoy more freedom.

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    Hello everybody,
    I want to update you on the hearing. It was quick and over within an hour. The chairman asked me to lead with evidence and I found that strange. The director harped on about the increase and between him and the chairman I was seldom asked to explain. When I did have an opportunity to speak I was shutdown by the Chairman and he then said that I was dishonest, and that the company cannot work with me. He asked me what the solution is and I answered that I do not know. He then said that if I am dismissed I would never get a job again and recommended that I resign immediate, and sign a waiver against future claims. I asked for a few minutes to make a decision and when I returned I told them that I was not dishonest and want to continue with the hearing. The chairman said I was dismissed immediately. In my opinion, the first charge about authorizing the bonuses was not even discussed and the increase that they claim I had taken was wrong, I tried to explain that my working days increased as per my contract and that I was paid for the time worked but they just never let me finish what I was trying to explain. I now am unemployed and will try to take the case to the CCMA.

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    Site Caretaker Dave A's Avatar
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    Not that'll be of much consequence in the end, but who was the chairman? An independent or someone from the company?

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