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WCLawyer
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14812
Experience:  L.LB (UOVS)
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Good Day, I had an employee that stayed away from work for

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Good Day,
I had an employee that stayed away from work for two an a half weeks with out leave or letting any person know his where abouts. We have tried to contact him, but got no clear answer. He work in a team of five men on a site and it is important that all would be present for the team to perform to full expectation, or they get behind. We employed another person in his place after about two weeks of slow production of that team, asuming he has permanently absconded and failing to contact him. He has been in our employ for 4 years, with regular absenteeism for a day or two at a time, without any excusis. Verbal warnings has been given as well as written warning on these occasions. HEarrived here without warning to claim his job back. We informed him that his position was given to another and gave him a written notice of a disciplinary hearing a week later. Upon enquiring where he was, he vaguely answered he was in jail, but no details. he left and I phoned around and got from the SAPD a case number XXXXX a charge. The charges given to him, that he was in the possession of dangerous and illegal narcotics with the intent to deal with it. He was caught with enough enough drugs to warrant that charge. Needless to say the company cannot associate ourselves with a suspected drug dealer. And he was jailed for the period he was absent. When he showed up for his hearing pertaing his absenteeism, we informed him as such and did not re-employ him for those two offences. He was given a letter to our decision. We also cannot just get rid of the recently employed person because he now pitched up for work. He has taken us to the ccma on the grounds that he was unfairly dismissed. He has appeared in court subsequently for the drug related charges , but the verdict is still pending. We are to appear at the CCMA on the 18th of Sept.
Submitted: 11 months ago.
Category: South Africa Law
Expert:  WCLawyer replied 11 months ago.
Good day and thank you for your question. My name is XXXXX XXXXX I will try and assist you today.

In order to provide you with the most accurate answer, I may have to ask you a lot of questions. This may seem tedious and irrelevant, but trust me, there is a reason for every question. So please be patient throughout the process and if it takes a little long for me to come back to you, it is probably because I am researching your answer. I hope that is okay.

Just to confirm: You have issued him with a notice of a disciplinary hearing and he did not pitch for that as well? Or do I have that wrong?
Customer: replied 11 months ago.


He has been issued a written notice of the disciplinary hearing and he did pitch for that, where we informed him of our decision not to re-employ him.

Expert:  WCLawyer replied 11 months ago.

Okay, so at the disciplinary hearing, he provided vague reasons for him being absent without leave for two weeks, which you deemed to be insufficient. You then dismissed him after the disciplinary hearing and he now went to the CCMA.

 

Is this more accurate?

Customer: replied 11 months ago.


That is correct, we also did confront him about the drug dealing charges, which proved to be true

Expert:  WCLawyer replied 11 months ago.
1. Did you do that after the hearing or at the hearing?

2. Do you know whether he was incarcerated for the whole two weeks?

3. On the form that was provided to you from the CCMA (form 7.11), is he saying that the dismissal is also procedurally unfair?
Customer: replied 11 months ago.


Hi,


I replied a while ago, did you receive the additional info you needed?

Expert:  WCLawyer replied 11 months ago.
I did not, unfortunately. There might be something wrong with the system. Do you mind replying on those questions again?
Customer: replied 11 months ago.


The nature of the dispute is unfair dismissal, because of alleged absenteeism. He has not followed all the internal grievances or disciplinary procedures before going to the CCMA. He expects compensation. He was dismissed at the disciplinary hearing after failing to give a plausible reason.He claims his reason for dismissal is misconduct. the dismissal was not related to probation.He claims the dismissal was procedurally and subtansively unfair.No reasons given.


this form was not filled in by himself.


We confronted him about the drug related charges during the hearing.


We do not know whether he was in jail for the two to three weeks.


we could not get hold of him on the cell phone number we had on record.

Expert:  WCLawyer replied 11 months ago.
The situation is expertly explained in this article.

The article draws a distinction between when you dismiss for misconduct and when you dismiss for incapacity. Either "method" can be used, but different principles apply to each "method".

I have given you the article mainly for further reference.

It seems that you have followed the path of misconduct and in this instance, you are not out of the woods, unfortunately. I cannot find any procedural unfairness from the information you provided. He was given a notice of a disciplinary hearing and was allowed to present his case, which basically cannot be anything other than an explanation on why he was not at work.

With regards XXXXX XXXXX substantive unfairness, since you have followed the misconduct route, if he was incarcerated for the whole two weeks, you might have some trouble. If he was out of prison for any time during the time that he did not pitch for work, the dismissal was substantively fair, since he could have come to work but stayed away.

Also, if there was a way to contact you and inform you that he is absent, this can also be used in establishing whether the dismissal is substantively fair.

The fact that he was arrested on drug related charges does not assist you in any way, unfortunately, since he is not convicted yet and deemed innocent until proved guilty.

You, unfortunately, have no other option but to appear at the conciliation and/or arbitration. If you fail to show, they are going to find in his favor by default. You need to show that the dismissal was both substantively and procedurally fair. With the latter, I think your are fine, but with the former, it is a bit murky for me at this stage. Like I said, if he could have contacted you or at any stage, was out of jail and could come to work, then, substantively, the dismissal would be fair. If not, it is going to be touch and go, unfortunately.

I hope I have answered all of your questions and addressed all your concerns, but if you have follow up questions before you rate, feel free to ask them at no extra cost. If you are satisfied with the service, kindly rate it positively. I do not get anything unless you rate the service
WCLawyer, Attorney
Category: South Africa Law
Satisfied Customers: 14812
Experience: L.LB (UOVS)
WCLawyer and other South Africa Law Specialists are ready to help you

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