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Thread: Employee Dismissed after accused of absconding

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    Employee Dismissed after accused of absconding

    Hi All,

    Ok so here's what I would like advice on:

    An employee (an assistance retail manager) applied 2 months in advance for +- 11 days leave, for wedding and honeymoon. The branch manager kept saying "yes, it's fine, I'll sign it, I'll sign it" and never did. The employee (in the wrong obviously for not dotting his T's) believed the branch manager and went on leave.

    Upon returning to work as normal after being away, he was told that a registered letter was sent to last known address telling the employee that he is absconding and there will be disciplinary action when he returns. The employee did not receive the letter - he moved house and did not update the records (also employees fault). There were no phone calls made or any other forms of communication.

    The employee tried to verbally say upon hearing this that it's complete nonsense. And tried to argue that the branch manager had agreed to sign the leave form, but as there was no proof (the branch manager must have thrown away the leave form) there was nothing that the employee could do.
    A hearing was scheduled but had to be postponed because the employee was told to attend training that week (training paid for by the employer for the employee to become a branch manager) After that week of training, the hearing took place and after another week the findings were that the employee was guilty of absconding and he was dismissed immediately for absconding.

    The employee, not being too clued up on labour law and thinking he didn't stand a chance, did not fight back. But now, upon gaining some knowledge, wants to take the employer to the CCMA.

    What I would like to know is: Does the employee stand a chance if he takes the employer to CCMA?
    Also, is it right to make an employee work / go for the training while waiting for the hearing date?

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by TDon View Post
    What I would like to know is: Does the employee stand a chance if he takes the employer to CCMA?
    Based solely on what you have posted, I'd say the employee has an excellent chance.

    Quote Originally Posted by TDon View Post
    Also, is it right to make an employee work / go for the training while waiting for the hearing date?
    Yes. Usually you would only suspend an employee from work if their hearing concerns something very serious (e.g. sexual harassment or assault) where it would be clearly inappropriate for them to be at work until it has been resolved.

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

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    TDon (07-Sep-17)

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    Thanks Greig.

    Much appreciated.

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    Hi Greig,

    Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?

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    Quote Originally Posted by TDon View Post
    Hi Greig,

    Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?
    From a recruitment point of view - YES DEFINATELY .....No one should hide anything from a new employer or a recruitment company ...... it will come out in the wash if the recruitment company has to check and then he is found to be lying !!

    It might just also scare the new employer a bit, but if everything is in his favour as you say then it should be ok

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    My thoughts exactly.

    Thanks very much HR.

    It's going to be difficult for this employee to disclose this information (male ego and all that) and convincing him will be difficult but I do agree that it is for the best.

    The prospective employer seems pretty keen as his qualifications are outstanding and has been vouched for by another outstanding employee.... so we will see.

    Thanks again.

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    Unfortunately new employees don't like to hear about CCMA coming out in the wash ...... understandably .....

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    TDon (19-Sep-17)

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by TDon View Post
    Just a follow up question on this, if the employee has been offered a new job - in the same field, by another company and up until now the reason for termination of previous employment was kept a secret, would it be better if the employee decides to disclose in the final interview that he was unfairly dismissed for absconding and the case is currently with the CCMA? My thoughts are that it would be best because there is a chance of dismissal for not disclosing in the future right?
    This is a tricky one. Job applicants and employees do have a legal duty to disclose pertinent information to their employers, but there is contradictory case law regarding the extent of this duty as well as the legality of not employing an applicant for disclosing prejudicial details (or dismissing them post-employment after discovering details that were not previously disclosed).

    For example, in MEC for Education, Gauteng v Mgijima and Others an employee was dismissed several months after his employer learned of previous disciplinary charges that the employee never disclosed. The Labour Court ruled that this dismissal was fair.

    However, in Bhembe / Independent Development Trust (IDT), the CCMA ruled that the dismissal of an employee for failing to disclose previous criminal charges was unfair.

    There is no definitive legal or practical answer. If you disclose, you risk not being employed in the first place (which may or may not be legal). If you don't disclose, you risk dismissal later (which also may or may not be legal). A strong argument can be made for either approach.

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

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    TDon (19-Sep-17)

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    And the fact of the matter is - it is very difficult to prove that a company does not hire a person for a specific reason. The fact is 99% of companies will not hire a person if they have dirty washing e.g. they have taken their previous company to the CCMA. They just do not want to risk that happening to them. So they can give whatever reason they want not to hire a person, but the fact still remains.

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    TDon (19-Sep-17)

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    Silver Member Greig Whitton's Avatar
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    Quote Originally Posted by HR Solutions View Post
    And the fact of the matter is - it is very difficult to prove that a company does not hire a person for a specific reason. The fact is 99% of companies will not hire a person if they have dirty washing e.g. they have taken their previous company to the CCMA. They just do not want to risk that happening to them. So they can give whatever reason they want not to hire a person, but the fact still remains.
    100% agree. Which is why disclosure is likely to be highly prejudicial. If I were hiring, and an applicant disclosed that they had been dismissed from their previous job for absconding, there is absolutely no way I would take the risk of hiring them.

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

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