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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience:  L.LB (UOVS)
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I have been disciplined for poor or being incapable of doing

Customer Question

I have been disciplined for "poor" or being incapable of doing my work duties, My contract initially indicated the wrong position and after a few disciplinary meeting I was given a list of tasks to which were said to be my work but half the duties or tasks were actually work duties of some of my junior staff.

the duties or tasks were also extremely vague, and sometimes a blank templates were given, and I was not sure what the exact or specific information or reporting was needed to be put into the report.

Also being in management, I was asked to channel all my work decisions through my superior, I felt I had been given the designation and role to make certain decisions and the point is obsolete if I have to get permission for each and every decision I make.
many instances the full story was not heard and lots of circumstantial evidence was exhibited, such as if a worker answers a cell phone call from a client and then automatically gets reprimanded and the call is judged as personal call without investigating into the matters, or if a workers steps out of the office for a few minutes to catch lunch and then is regarded as being awol.

Would I have a case against the disciplinary meetings and warning letters?
Submitted: 3 years ago.
Category: South Africa Law
Expert:  WCLawyer replied 3 years ago.

Good day.

If you feel that the warning is unfair and that you did your duties in accordance with your initial employment agreement and that the action taken against you is frivolous, you absolutely can fight it.

If you receive a written warning and you feel that it has been issued unfairly, you would first have to follow your companies internal appeal procedure. In the absence of this, you could approach the CCMA within 90 days to appeal the written warning.

Customer: replied 3 years ago.
I received a final written warning and other warning for not completing various frivolous tasks. Should the employment contract state what the duties, tasks and role should be?

I had a notice of "poor" work performance meeting which it was there was supposed to be a decision whether my services would be terminated. Would it be viable for me to dispute this with the CCMA?

There was supposed to be a decision by their legal team by 3rd May 2011, I have not yet revived the answer.
Expert:  WCLawyer replied 3 years ago.

The employment contract could state your responsibilities in broad terms. It does not have to state everything in detail that you are responsible for. Since you seem to be in management, you would be responsible for your department as well, which means that other peoples responsibilities could become your problem if it is not addressed.

If, however, you have to ask permission for everything and that permission is not forthcoming, you are pretty much caught between Faro and the Red Sea, which would make disciplinary action against your for inaction, unfair, in my opinion.

If I understand you correctly, the meeting resulted in you getting a final warning, so, yes, you can take that to the CCMA if you feel that what has been decided is untrue or you did not get a chance to make submissions etc.

Customer: replied 3 years ago.
Thanks, XXXXX XXXXX am in management, but my initial contract was wrong and started that I was standard Call Centre agent when in fact I was in Senior management. later I received a new contract which they indicated meant I was permanent, and that I was a Senior manager and within the contract it had included all the wording of the old contract, and some new parts,although nothing technical or my responsibilities in general. It states about trade secrets, termination, remuneration, illness, leave etc. There is no policy with regard to study leave which i find is also a problem as I have exams coming up.

There is a section which is headed: Duties of the Employee, but it just states that "employee shall perform and fulfill duties assigned to him the company or its directors and that is consistent with his office" or on behalf of the board of directors.

I received many warnings, I received one final written warning because I had discussed some news to a staff member that there was a particular person in management who was being biased toward him, when it came to the warning, none of the people who heard the news decided to testify, they all said they do not know.

I received a few written warnings for various tasks and duties which were not performed, afterward, it lead to three meetings where my performance was being dissected and monitored. Some of the tasks I indicated I understood in theory what they meant, but later when I actually tried to do the tasks I realized that I needed more specific instructions so I could know what to actually put into the report. i was given blank templates and these should be filled in, but not sure what exactly they needed in it, for instance, summaries, or statistics , analysis etc.


it all culminated in the final meeting in which it could be decided that I could be ask to leave the company, and as of now I am awaiting their decision. My request to have their lawyers look at my evidence was rejected by their lawyer as he felt it was indicated that most of the issues were previously discussed, I had asked him whilst making his decision to look and digest the evidence on my side as I had some lengthy documents and wanted him to read over it when making his decision. Some of it pertained to previous issues and there was a reasoning that there was no need to go over it.

The company since I started 5 months ago has since also de-listed off the JSE and decided to break up its divisions, I an not sure where that leaves myself, so I guess there would be no board of directors to speak of.
Expert:  WCLawyer replied 3 years ago.

Well, if they dismiss you without giving you an opportunity to state your case, the dismissal would be procedurally unfair and you would be able to challenge the dismissal as well.

I would challenge the written warning if I was you, however, since if you don't, it would appear that you agree with their assessment.

WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14867
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you
Customer: replied 3 years ago.
So challenge all the warnings? Some of them were issued in February. Can I state that from the last meeting date that I want to challenge the warning and the meetings?

The date the warnings expire is in August.
Expert:  WCLawyer replied 3 years ago.
Well, at least the final warning.
Customer: replied 3 years ago.
I heard rumors from management that if staff go to CCMA then then don't care because at worst they will just pay the settlement. Also it was indicated that one an Employer sees that someone has went to CCMA that they will see it and then it reflects that the staff member is a trouble maker.

If I go to CCMA, will any new company I work for know or can find out if I went to CCMA? I do not want this to impact on me having a difficult time finding a new job.
How do I approach the CCMA? I was considering to see how the new structure pans out and see if I get fired or not and then decide to go.

If you were me, would you go now to CCMA or wait to see what happens?.. how would this impact on my case.

And what would happen if I lose the case?, will it go on record? and the costs of going to CCMA?

Regards
Expert:  WCLawyer replied 3 years ago.

They cannot discriminate against you for going to the CCMA. That would give rise to new causes of action on your part, at least potentially.

If you lose at the CCMA, you lose. Nothing goes on a record or something.

The service that the CCMA offers is free. If, however, you wish to appoint an attorney, then it will cost you.

If the final written warning remains as it stands, then it can be used in future proceedings against you, at least until August. You have to decide whether you are willing to risk it.

Customer: replied 3 years ago.
So I would until August to decide whether to take action?

Would you advise taking action now or waiting to see where I fit in?


Expert:  WCLawyer replied 3 years ago.
You have 90 days within which to decide. I would not let the final warning stand, though, given that it would indicate that I accept the outcome and given that it could hold dire consequences, but you have to decide. You are closer to the "action" than me and would have a better feel for whether they are going to "victimize" you in the future and particularly before August.
Customer: replied 3 years ago.


If I lose the case, I take it would give them more power to use that fact I lost to dismiss me?

I think the victimization may start to stop as the splitting of the divisions would mean that those individuals that are causing the problem would be moved to separate divisions and therefore no longer would have the the power to exert that control, but I not 100% on that one.


Let me sleep on this one.
Expert:  WCLawyer replied 3 years ago.
Not more than they would have in the first instance. They cannot fire you for challenging their ruling. They cannot use the fact that you went to the CCMA as a factor in any future disciplinary proceedings.

Decision remains yours.
Customer: replied 3 years ago.
The thing that initially worried me was that they used circumstantial evidence and scenarios, and had not fully investigated into the matters and based on that put forward their own versions and had their people back it up, and those that could come forward in to assist my story did not come forward as they felt that would be put into that group.


We also had one sub contracted third party to deal with all out disciplinary issues and to get 1 person who comes in every 3 or 4th day for a few hours in my eyes did not seem logical, being that we have over 160 staff members and have one part time person dealing with the issues, and it felt that the HR person who was an external consultant would not investigate into the matters and us make decisions based on hearsay.

It seems like a few persons made them selves to be some kind of dictators and used the HR and lawyers as a tool to get rid of people who get in their way or who do not want to be their puppets, hence the need for me to get permission on every decision I need to make.

A lot of instances hearsay and circumstantial evidence is used to make certain look a a certain way and create a certain impression and that can be used to fire certain people, this is something that worries me and that it could be used against me if I go to CCMA.
Expert:  WCLawyer replied 3 years ago.
Circumstantial evidence can be used, possibly, but not hearsay.
Customer: replied 3 years ago.
Thanks, you have been a great help. Much appreciated
Expert:  WCLawyer replied 3 years ago.
Pleasure
Customer: replied 3 years ago.
So I'd have a case against the contract and the vague roles/job descriptions etc.

Thanks
Expert:  WCLawyer replied 3 years ago.

Not against the contract, but against the unfair conduct of holding you responsible for things you are not responsible for on the one side and not providing the necessary guidance on the other.

Customer: replied 3 years ago.
And part of non guidance would be the "channeling" of almost every decision to my superior, which takes away my decision making and therefore really to just follow what they say instead of thinking for myself and coming to a decision.

I will make a decision wrong or right, but I do not think its fair to have someone second guess every decision I make or dissect it and try to find fault so that it can reflect better on their side. There is no team work and other managers do their work and keep it separate. Every time there is a problem they feel they need to put a face to the problem instead of looking for a solution and working together to ensure that the problem does not occur in the future.

You see what happens is if I make a decision or not make a decision according to what someone else would want, then they go to someone superior so that it can be changed or amended, but they do not come to me to consult me to change the decision or just accept the decision. And the the higher managers allow this instead of relaying back to the correct person for the change.

There is a serous problem with authority here and that is part of the reason for the decentralization that is occurring now.

Also the vague descriptions would help my case?

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