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Thread: Absconding Deserting Employees

  1. #21
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    NIRE > Wonderful.

    Your insight is truly commendable. My approach is: keep it simple, ethical and legal.

    However the CCMA is a great tool and can be a powerful adversary. Yet I was told that there are other such tools in the form of health and safety inspectors, Industrial inspectors and auditors that can prove both a blessing and a curst depending which side they are on.

    Now interestingly enough there are companies that are unaware of these individuals and the entities they represent. Can you perhaps give us a better insight of who these individuals are? I am especially interested in the so-called “Industrial inspectors” No legend has it that this individual can close a factory... is this at all true?

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    Legal Bodies

    Hi there

    I think the easy way to explain this is that there are four Legal bodies that have powers under the Law to close your business, fine you or make any demands.

    One is the Labour Department: This department have divisions that look at all aspects of businesses and make sure that they operate within the legal framework of our country. This Department looks at Labour issues and how employees are paid, treated and the Health and Safety of the working environment. They are allowed to have full inspections but must still operate within their rights by following process when detecting a problem.

    Second on the Labour Side will be the CCMA but interestingly they are limited in their application to Dismissal Disputes, Mediation services, Conciliation services, Arbitration services and can also assist with collective bargaining or agreements. Only if your industry has a Bargaining Counsel do they replace the CCMA and some of the Labour Department functions.

    The third body addressing more the environmental and Health and Safety aspects of your business is the Health Department and they would obviously be more of a factor in some sectors than others. The Government Gazette is the best place to review their impact on your specific industry.

    The forth body is obviously SARS and they address the financial aspect and legislation.

    Any of these bodies may inspect and have the rights within their constitutions and the law to issue penalties as applicable.

    Any other person must be contracted by one of these bodies in order to legally inspect and enforce. Should you face persons not of these bodies they would probably be consultants and they would need to be hired by you or have your permission to inspect and then may only give recommendation

    You may always use one of the legal bodies and should as they will give great assistance, just keep in mind that they do charge on some services when requested to assist as opposed to an inspection initiated by them.

    Thanks

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    Dave A (05-May-09)

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    @NIRE

    Excellent!

    Thank you for taking the time to inform us and especially thank you for taking the time to answer my questions. I have a better understanding of how the system works and what I need to do to protect myself in the near future. The guidelines and information given here is priceless in its own right and I hope that others will also benefit from these posts.

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    A side note: These would be the universally applicable bodies. A number of industries have specific authorities with inspection and business-busting powers.

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    Two similar scenarios

    All of the above is very useful and thank you very much - however as you say, each case is different... I have two problems (December was a tough month)...
    We are a small sole proprietor. One of my employees didn't come to work for two days and when I phoned him he said he was angry with our manager for doping him off late. I counseled the employee and told him that if he had issues with other members of staff or anything pertaining to his job he was to contact me as the owner and not simply go AWOL. He agreed and came back to work. The following Monday he came to work, had an argument with the manager and left site. I tried to phone him for a week - he ignored my calls. Unfortunately, as this employee has only been working for us for 2 months, I do not know is family and it is dangerous for me to go through to where he lives as he lives in a township - I also do not have an address for him as, he says, he doesn't have one. Our company policy clearly states that 3 days AWOL = dismissal if now attempt was made by the employee to contact the office. After 2 weeks I presumed desertion. The day before Christmas, 3 weeks later, he phoned DEMANDING his bonus pay out. I asked him why he took 3 weeks to contact me for his bonus and he said that the manager had fired him. Firstly - only I am permitted to "fire" someone with a months written notice as is stated in his contract. Our other staff say that he said "I'm not putting up with this man anymore" and left site. I advised him that he had not been fired by Jan but that because he left us without notice at the busiest time of year when he had 2 projects on deadline we had presumed he had deserted his job and, that bonuses are not awarded to employees who leave their job in this way. He then threatened to take me to the police for stealing his money. Blow me down - he pitched to work when our offices re-opened after the builders holiday and presented me with his incentive sheet which states (by his calculation) that I owe him over R5000 bonus. Nobody was paid a bonus of that amount (not even me). Besides which - I advised him again that he deserted his job and I do not have to pay him a bonus as bonuses are awarded on merit. He has now threatened to take us to the CCMA.... How should I prepare?

    The other instance is that my manager was accused by one of my clients for stealing. We had to suspend him (which I did on full pay) until the investigation could be carried out as he was not allowed onto the estate where we work. He has made no effort to contact us and when we phone him his phone simply goes to voice mail. I have e-mailed him and also dropped a letter off at his house. He has not confirmed receipt of anything and did not appear for his hearing last week. However I found out today that he is working for someone else????? How to proceed?

    Thank you in advance for your assistance/advice. I have had such a trying time with staff.

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    I have an employee who was accused of theft in 3 of our clients homes in a private estate. Pending an investigation by the police we had to suspend this employee because our clients would not allow him on their property. He was due to be back at work 3 weeks ago but he never arrived. We have tried to phone him, he does not take our calls, we have sms'd him and we have now sent a registered letter to his home requesting that he come to a hearing. He is also still in possession of a tool box full of tools and the spare tyre for one of our vehicles. He has now failed to arrive at a third set up hearing. How should I proceed? Do I need to pay him for the time that he was on suspension if he now seems to have just absconded? I have also heard via the grapevine that he is already working for someone else...

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    Sounds like the sooner you formally dismiss him as absconded the better.

    As for paying him...
    Unless someone here raises a concern to the contrary, in this situation I'd wait until the employee contacted you asking about it.

  9. #28
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    Thanks Dave - really appreciate the response.

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    Excellent thread folks and really informative. Thank you.

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    Thanks for the above post, I find myself as an employer in the same situation and am looking for the correct procedure to follow.
    If the employee's contract states the following This Agreement of Employment shall commence on 21st July 2010 and will super cede and cancel all previous Agreements between the Employee and the Company and shall terminate on 31st July 2011
    Is it not deemed that (a) the employee doesn't have an valid contract with the company, therefore notice merely needs to be given that due to not reporting for duty the services of the employee have been terminated?

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