Employee Dismissed after accused of absconding

[Greig Whitton]

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.

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.

[TDon]

Thanks Greig.

Much appreciated.

[TDon]

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?

[HR Solutions]

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

[TDon]

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.

[Greig Whitton]

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.