Tips when faced with employment issues

Some people live in constant fear of being fired. Who is going to pay for the bond, the car, the children’s school fees, etc.? What if my boss has a bad day and decides to fire me at the drop of a hat? If it can happen in The Devil Wears Prada, it can probably happen to me, too…?

The good news: South African Labour Law favours reasonableness and (more often than not) the employee. A fair dismissal means two things. Not only must a dismissal be substantively fair (in other words for a good reason), but it must also be procedurally fair. This is where most employers falter: the dismissal was for a good reason but was done in an incorrect/ unfair manner! This could lead to the CCMA or Labour

Court ordering your reinstatement, compensation paid to you or even both!

Procedurally speaking, the process is normally as follows: verbal warning, written warning, final written warning and then … dismissal. Only in extreme cases (assault or gross negligence, for example) may an employer skip a few steps and opt for a dismissal. Between each of the aforementioned steps, however, another important protector-of-the-employee lies: the disciplinary hearing. Remember that the outcome of a disciplinary hearing can be a verbal warning, written warning, final written warning or dismissal in serious cases.

5 Tips when faced with that ‘Notice to attend a Disciplinary Hearing’ document:

1. Request the formal written complaint that led to the disciplinary enquiry in the first place. This will help you prepare a proper defence. The formal written complaint will go into a lot more detail than the few sentences you’ll find in the ‘Notice to attend a Disciplinary Hearing’ document, which typically merely lists the charge(s) against you in a sentence or two. Note that you have a right to the formal written complaint, however, employers often fail to attach it to the ‘Notice to attend a Disciplinary Hearing’ document.

2. Ask whether you may bring in a legal representative. Most employers will, however, decline as they also have the freedom to do so. Your next best bet is a union representative or a colleague. You do have the right to be represented by a fellow worker. At the very least, use any colleague to sit in and take notes and write EVERYTHING down. This will serve you well should you take the matter to the CCMA at a later stage.

3. Make sure that the Chairperson is someone outside the organisation and does not work for/ follow demands of the complainant (person whose formal complaint led to the disciplinary enquiry against you).

4. Use the formal written complaint to prepare your questions to the complainant and his/her witnesses in advance. The complainant and his/ her witnesses should state their case first, providing you the opportunity to cross examine the complainant’s witnesses.

5. Make a special note of the time it takes for the Chairperson to come to a conclusion. Did the Chairperson take enough time (preferably a few days) to consider all the evidence or did the Chairperson perhaps have a preconceived outcome in mind? Remember that the Chairperson must use the evidence presented by the two parties (you and the complainant) to determine your guilt on a balance of probabilities. Your previous work record/ written warnings/ compliments/ mitigating factors are excluded from this decision and only come into play after the Chairperson is convinced of your guilt and before the Chairperson decides on a proper sanction (written warning, final written warning, dismissal).

One last thing, remember your rights when it comes to a disciplinary hearing. Note that these rights must be provided to you in writing prior to the hearing. Make a large note of it if this is not the case!

You have the right to:

a. Be present at the hearing. If you fail to attend the hearing, the matter needs to be postponed to a new date. If you are then, however, absent once more, the enquiry may proceed in your absence;

b. Have enough time to prepare your defense against the charges;

c. Be represented by a colleague of your choice or by a shop steward/ union official;

d. Ask as many questions as you wish, cross examine the witnesses called by the complainant and also to have witnesses of your own present and ready to be asked questions;

e. An interpreter if necessary;

f. Appeal the decision of the Chairperson internally before proceeding to the CCMA.


* Attention all Legal Hero Policyholders: please contact us the moment your receive a notice to attend a disciplinary hearing. Dial 0861 22 99 22 and select voice prompt 4. 

Seven Interesting Truths about Polygraph Tests

1. There is currently no law specifically regulating polygraph (lie detecting) tests in South Africa!


2. Some employers make use of polygraphs to test the honesty of employees after company property has gone missing or after alleged misconduct. A few employers even request pre-interview polygraph testing!


3. Polygraph tests involve electronic sensors placed over the chest, abdominal and finger to measure respiratory, sweat gland, cardiovascular and blood pressure activity whilst the examinee responds to certain questions.


4. Remember that the outcome of a polygraph test may NOT be the sole reason for a dismissal (reference: Sosibo & Others). It may therefore only count as an aggravating factor to support other evidence against the employee.


5. A person who performs a polygraph test, called a polygraphist, can testify in court as an expert witness to support an employer’s claim against an employee. A polygraph test will cost the employer about R500.00 – R2 000.00+, excluding traveling fees.


6. Furthermore, for the outcome of a polygraph test to be permissible in court, the employer has to comply with a few strict rules:

a) The employer needs the employee’s written consent;

b) The employee’s refusal to undergo a polygraph test does NOT amount to an admission of guilt.
c) The polygraph questions may not be not be vague or misleading;
d) The questions should be explained to the employee prior to the test;
e) The employee has the right to an interpreter during proceedings;
f) The employee has the right to have a colleague/ another person present;

g) The outcome of the polygraph test is confidential and may only be released to the examinee or an authorized person.


7. How accurate is a polygraph test? According to a very recent study (2015) conducted by the American Polygraph Association, a polygraph test is about 86% accurate! There are, however, many who disagree with the admissibility of this statistic and who argue that polygraph testing is subject to far too many variables.


Wishing you a fantastic day,

Legal Hero 

www.legalhero.co.za 

Unlawful Deductions - Labour / Salary

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.

www.legalhero.co.za 

One of life's villains: being dismissed/ retrenched

It’s a nasty feeling, especially if you have reason to believe that the dismissal was unfair. Did you know that about 100 000 cases were referred to the CCMA last year? Legal Hero saves the day by arranging CCMA/ Labour court representation for its policyholders (no excess fees when claiming).

Free tips:

• An unfair dismissal must be referred to the CCMA within 30 days.
• The CCMA procedure entails two 'hearings:'

a)      Conciliation (where no legal representation is allowed and the presiding officer only makes suggestions);

b)      Arbitration (legal representation is allowed and the arbitrator makes a binding order).

• For a dismissal to be fair, it must be both substantively and procedurally fair. Substantive fairness means that a valid reason was proved by your boss (misconduct, incapacity or operational requirements). Procedural fairness means that a fair procedure was followed (warnings, disciplinary hearing, etc.).
• At a disciplinary hearing, the employee has the right to:

a)      Be present (the employee needs to provide the employer with a reasonable excuse for postponement);

b)      Bring his/her own witnesses;

c)       Request an interpreter;

d)      Not have the person with whom there is conflict chair the hearing;

e)      Question and cross-examine the witnesses relied on by the employer;

f)       Make reference to mitigating factors (first offence, apology, only breadwinner, years of loyal service to the employer, etc.).

• If you have been retrenched, you may visit the CCMA for conciliation (no binding order) but the matter may proceed to the Labour Court for a binding order.
• A dismissal is automatically unfair if it is due to discrimination on race, sex, religion, etc. Similar to retrenchments, one may approach the CCMA BUT for a binding order the matter must proceed to the Labour Court.
• Unlawful deductions from your salary by your employer OR outstanding salaries must be referred to the Department of Labour in your area (and not the CCMA). 

Knowledge is power. 

Legal Hero

www.legalhero.co.za 

Mission statement

Legal Hero steps up to secure justice in an uncertain world where legal threats are likely, skills are scarce and only a minority can afford the law. Determined to leave this world a better place, Legal Hero endeavours to not only provide quality legal assistance at an affordable monthly premium, but also legal education, so that everyone, in time, may become their own hero.