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Barend B.
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1287
Experience:  BLC LLB (Pret) LLM (Augsburg)
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Hi there, I was employed at a consulting company in October

Resolved Question:

Hi there, I was employed at a consulting company in October 2012 after a 3 stage recruitment process. I was hired for the position of senior consultant based on my qualifications even though I had no consulting experience. At my interview I did make it clear that I had no experience for the job.

The organsiation is a great place to work however I was told last week that I am not what they are looking for and I do not have the skills required for this position. Prior to this, in May 2013, my performace was reviewed and I was notified that I was not meeting the requirements of the job. We discussed mentoring but this never happened.

Tomorrow we meet to discuss my options and timelines at this job. Please advise me as to what my options are.

Thank you
F
Submitted: 10 months ago.
Category: South Africa Law
Expert:  Barend B. replied 10 months ago.
Good morning,

What does your contract of employment say? Are you still on probation? Is it a permanent position or a fixed term contract? Were certain performance or skills criteria communicated to you? Why did the mentoring not happen? Did you follow up on the mentoring issue?

Regards,
BB
Customer: replied 10 months ago.

Hi, please see my responses below:


 


What does your contract of employment say?


It is a standard contract with one months termination notice. Please see the clause below from the contract:


 


18.1 Nothing contained herein shall detract from the right of TRIALOGUE to terminate the employment of the EMPLOYEE whether with or without notice by reason of retrenchment, the incapacity of the EMPLOYEE, misconduct by the EMPLOYEE (including the breach of any provision of these conditions of employment) or for any other reason recognized as sufficient in law or equity.


 


Are you still on probation?


My probation period was for 3 months


 


Is it a permanent position or a fixed term contract?


Permanent position


 


Were certain performance or skills criteria communicated to you?


Yes, these are communicated as KPAs during my review.


 


Why did the mentoring not happen?


The organisation has no capacity to mentor. It is a busy consultancy


 


 


Did you follow up on the mentoring issue?


Yes; it was acknowledged but not followed up on

Expert:  Barend B. replied 10 months ago.
So at least since May 2013 the performance or skills criteria or standards were made known to you. Since mentoring was discussed, the employer should have either followed through with that, or proposed another avenue to improve your skills and/or performance, eg. formal training, and then you should have been given a reasonable time to improve on your performance. In my opinion the fact that the employer neglected to provide the mentoring or other assistance to improve your performance would count against them if they proceed with a dismissal. It would under the circumstances be an unfair dismissal. They were happy enough with your performance to not have dismissed you during your probation period. Thereafter the duty was on the employer to give guidance on what was expected of you and how it could be improved.

Your options would be to tell them that the mentoring mentioned in May 2013 must be implemented or another type of training must be introduced or followed in order to enable you to perform according to their expectations. Only if the mentoring and/or training fails, will they be in a position to terminate your services due to poor performance.

Regards,
BB
Customer: replied 10 months ago.

Thank you. They have asked to do discuss options with them.If they chose to dismiss me, how much time can I ask for as a notice period?


 


I need to find a new job during this time.


 


F

Expert:  Barend B. replied 10 months ago.
If they go strictly according to contract, they will give you a month's notice. But if you can convince them that dismissing you under the circumstances is wrong, but you are willing to come to a settlement, a period of 3-4 months would not be unreasonable.

Regards,
BB
Barend B., Legal Consultant
Category: South Africa Law
Satisfied Customers: 1287
Experience: BLC LLB (Pret) LLM (Augsburg)
Barend B. and other South Africa Law Specialists are ready to help you

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