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Thread: Absconding Deserting Employees

  1. #11
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    It is in what you know

    The CCMA Commisioners actualy have a set of rules that most people don't know about.

    This is one of the reasons that I believe Labour or external representation is not allowed in conciliation, they hope that you don't know and then, when they pick up you don't know what law or clause to quote, they feel free to do as they please.

    They need to show a high % conciliated cases (cases not escalating to arbitration) this results in doing anything to get both parties to agree to settle.

    Most people are not aware that due to the fact that you are allowed representation in arbitration you may refuse to go directly to arbitration and they need to issue a new notice of arbitration with sufficient time for preperation.

    But even before this phase if you prepare your case from the start in line with their codes of good practice you can insist on the procedures they need to follow according to their constitution. This makes the whole thing simple as they recognize the fact that you know what you doing and they need to play by the book.

    These codes of good practice is available but too bulcky to show here, I can send the via e-mail to those who are interested.

  2. Thanks given for this post:

    Graeme (28-Apr-09)

  3. #12
    Site Caretaker Dave A's Avatar
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    NIRE, could you email them to me and I'll see if there is a way to get them up and available as a download for anyone else interested.

  4. #13
    Site Caretaker Dave A's Avatar
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    A big thank you to Nire for emailing me a rather substantial collection of CCMA info sheets. They really look informative and easy to read.

    I've set up a category called CCMA info sheets in the links and downloads manager and will set about adding files over the next few days.

  5. #14
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    info regarding salary

    good day guys
    nice thread
    i need some info
    if a employee has not been to work as per the discussion above from you guys
    is he supposed to get a salary tho
    as we have an issue at work and the employee hasnt been paid his salary cause he has not been to work for the month
    but now he claims to take it to the ccma

    any advice will be appreciated

    thanx
    Last edited by Dave A; 28-Apr-09 at 04:40 PM.

  6. #15
    Site Caretaker Dave A's Avatar
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    What reason has the employee given for his absence?

  7. #16
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    absconding

    hi
    he says he had a drug issue which he did mention to my boss
    but he says my boss did nothing to help him
    hence he got depressed n started with drugs etc
    and now he lost his family

    thanx for the replys

  8. #17
    Site Caretaker Dave A's Avatar
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    Quote Originally Posted by mervinm View Post
    he says he had a drug issue which he did mention to my boss
    but he says my boss did nothing to help him
    Which raises an interesting question - is the boss or company obliged to help him with his drug problem?

    Yes, it is probably good practice, but can the company be held responsible for the employee's absenteeism due to the employee's drug problem?

  9. #18
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    There are two different issues here.

    Let’s do the easy one, there is a little law (common law) that states "No work, No pay" thus if the person is not on legitimate leave of any sort then you do not have to pay for work not done.

    The tricky part is the drug reasons and the responsibility of the company in this regard. Unless the company has a specific policy and procedure dealing with alcohol and substance abuse this is a very grey aria in the law.

    (get policy in place asap that states clearly that the company will not tolerate any alcohol and/or substance abuse and that sumary dismissal will be the result. this will sort out future issues)

    Basically the company must show that a reasonable effort was made to assist the employee. (referral to drug rehab, time off to attend, counselling) the procedures outlined in the code of good practice for dismissal in cases of poor work performance would be the closest to the procedures to follow in this regard.

    However this does not make the company responsible for this employee as long as an effort has been made to assist it is still his responsibility to do what is needed to clean up.

    My best advice here would not be to take action against the employee for the addiction but rather on his conduct and/or failures related to his work.

    Absenteeism - being absent for any periods without permission or a doctor’s note (warnings would be penalty here)

    Misconduct - any conduct that is contrary to the law and/or policies and procedures of the company (final warning to dismissal is penalty here dependent on the severity of the incident)

    Negligence - any action or failure to act that has potentially or actually caused damage to the company (final warning to dismissal is penalty here dependent on the severity of the incident)

    I would give him a disciplinary hearing and dependent on the facts give him a final written warning with a stipulation that he attends a rehab clinic and supply proof of his successful completion within a specified time (reasonable time).

    This then leaves it up to him to either clean up his act or move along as failure to ad hear to this and further incidence of similar nature within a 12 month period results in a hearing within which dependent on the facts he will be dismissed.

    Hope this helps

  10. Thanks given for this post:

    Dave A (29-Apr-09)

  11. #19
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    NIRE > Nice!

    See I myself know that a policy is an important bit of kit. The lack of a policy can easily be exploited. Now I am new in the industry myself and I would like to know if there is a particular way to setup a policy for the workplace. Now I thought the labour law is a good place to start. And the information that was provided here is worth its weight in gold.

    Also if possible and if it exists where can I get a copy of the CCMA’s procedures manual if such a manual? That is if it exists. I am especially interested in the disciplinary procedures.

    I think I am not the only one that feels that your contribute are greatly appreciated.

    Thank you.

  12. #20
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    Policies and Procedures

    Thank you so much.

    First for all those who don't know your policies and procedures are accepted in CCMA and Court as the "laws" and "Contractual agreed obligations" it takes away the grey and you only left to deal with the black and white. Take the time to put them in place and to maintain them, because they useless until that one moment they save you allot of time and allot of money.

    First question how to do a policy and procedure?

    The easy way is to split the two words “policy” and “procedure”. Start with policy what is it that you want to do, list it as you would like it (forget about everything ells including the law). Then focus on procedure, how you want to do it.

    This leaves you with what you want and how you want it. Don’t limit yourself with what you think you can and can’t do, list it all as though there isn’t anything to hold you back.

    Now go to the labour relations act, the basic conditions of employment act and the Health and Safety act. Make sure that your Policy and Procedure does not negate or negatively impact on any specifically mentioned rights or obligations.

    After this you go to the Codes of Good Practice and make sure that the procedure part of your policies fall in line with these.

    Now you will have what you want and how you want it without limiting yourself, but with the assurance that you are legally compliant.

    Allot of people do not realize that your policies dictate the law within your business and can contain anything as long as it is based on the inherent nature and requirements of the business. You can and must stipulate everything you want and need. The only consideration is that it cannot contravene a law or negatively impact on basic human rights or rights under the law.

    Second question: Where to find information on CCMA rules and Codes of good Practice especially Disciplinary Procedures?

    There is not a specific manual but rather info sheets and Codes.

    The CCMA website gives short explanations to specific areas and lists the Codes of good Practice which are the guidelines used to determine cases.

    A policy of Disciplinary Procedures is usually compiled from the Labour Relations Act, Basic Conditions of Employment Act and Health and Safety Act as there are a number of gray arias in these acts that require you to choose your preference within their framework.

    I always train my clients on these Acts and laws first as this makes it easy to understand what the rules are, once they know these they choose how they would like to run their ship and we compile the procedure.

    There are hundreds of Disciplinary Policies and Procedures on the web, the main problem I have with using those is that you miss out on the things you would like (and don’t know you can have). Once you know the facts you can get allot more specific to your business.

    It is a bit of a process but the knowledge you gain saves you time and money in the long run.

    Thanks again

  13. Thanks given for this post:

    Dave A (30-Apr-09)

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