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I work in retail is was suspended on dereliction of duties…

I work in retail...

I work in retail is was suspended on dereliction of duties no other details were given and now the company wants me to do a lie detector test I am afraid if I do fail the test as I am a nervous person they will use that to terminate me what can I do

Lawyer's Assistant: Have you discussed the termination with a manager or HR? Or with a lawyer?

My hr and my area manager are of no help as this is a new area manager and I get the feeling she wants to get rid of me and I have a spotless record I have been working for this company for 14 years and I have not spoken to a lawyer

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

No I don't but I do have an appointment with a union member on Friday but they want me to do a lie detector test tomoro

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I feel that all the happenings that is going on they wanting to basically force me to resign I don't to me this feels like constructive termination I need assistance

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Answered in 1 minute by:
5/15/2018
LegalPro54
LegalPro54, Lawyer
Category: South Africa Law
Satisfied Customers: 14,232
Experience: General practitioner with diverse legal experience.
Verified

Hello and welcome to Just Answer. I am very sorry to hear about this. Did you have a specific question I can assist you with?

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Customer reply replied 1 month ago
I was suspended for dereliction of duties no specifics and now the company wants me to do a lie detector test tomorrow and I have been on paid suspension for a month and I feel if I do go for the lie detector test they will use it against me as I am a nervous person what can I do
Customer reply replied 1 month ago
I have been working 14 years and I have a clean record no warnings and if I didn't do my work for the last 6 months then why didn't they do a poor work performance but I don't have that or a warning for the 14 years am I forced to do the lie detector
Customer reply replied 1 month ago
I feel with what they are doing they pushing me into a corner so that I will resign which I am not going to do all my meetings had no witnesses and the manager that is saying I have not been doing my work for the last 6 months is only with the company for two months and we have never worked together yeg

Thank you.

Nobody can force you to do a lie detector test. But by that same token, you cannot force your employer to continue employing you. Employment is "at will" absent an express agreement to the contrary and as such can be terminated for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct (filing a wage claim, taking FMLA leave, etc.). It doesn't matter whether the basis for termination is fair, reasonable or even TRUE.

In essence, employment is simply a voluntary relationship between two parties which either party can choose to discontinue at any time. So, if you refuse the lie detector, then it is quite possible your employer may choose to terminate your employment, and in that case there is probably nothing you can do. Taking the test of course risks that you will fail it, so that is not an ideal solution either. There is honestly probably no perfect solution here as nothing can ever guarantee continued employment. It sounds like you probably don't have much to lose by taking the lie detector test, especially if you let your employer know in advance that you are nervous about the test and may not pass it for that reason. You can also offer to respond to any specific questions your employer may have in writing, as an alternative to the test.

Ultimately, you need to reason with your employer here as no law is going to save your job. You need to navigate the situation in such a way that your employer WANTS to continue employing you, as that is the only true form of job security that exists.

I hope this helps. If there is anything else I can do for you, just let me know. It's my pleasure.

* Disclaimer *

Just Answer is a venue for informational and educational purposes only. No attorney-client relationship is formed by these communications, and the information provided is not legal advice.

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Customer reply replied 1 month ago
The reason for my question is that the entire process that was followed is unfair according to the policy and procedure of the company the correct corrective steps was not followed for example in my case poor work performance was not conducted it went into a immediate suspension
Customer reply replied 1 month ago
Basically it all falls under unfair labour practice and dereliction of duties is not a charge so I don't know what I did wrong or did not do and they have no documentation to explain to me what they are expecting of me and on what the actual grounds for suspension is

Thank you.

While highly unfair for an employer to skip over steps outlined in their policy, doing so is generally not against the law as such policies are mere guidelines and not interpreted by courts as creating mandatory legal obligations. You can certainly attempt to reason with your employer that policies were not followed and should have been. Many employers are open to these sorts of points because they WANT to be fair. However, they do not have to be fair and ultimately this is an issue of being able to persuade your employer.

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Customer reply replied 1 month ago
basically according to the labour law of South Africa the employer can do what they want with their employees or am I understanding you wrong

My apologies but somehow your question was routed into the U.S. employment law category. So, my answer does not necessarily apply. I will opt out in favor of a South African attorney.

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Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2,803
Experience: Practicing attorney and conveyancer with 16 years post article experience.
Verified

Thank you for your question. I will try to assist you in answering it today but please feel free to ask as many follow up questions as you like until you are 100% satisfied.

I am reviewing your question and will post an answer shortly.

Regards

Ask Your Own South Africa Law Question

You cannot be forced to undergo a polygraph test in order for the employer to "find evidence to build a case against you".

Tell your employer that if they want to discipline you, they must charge you formally and hold a disciplinary hearing. They can then present any evidence they have and you will be entitled to be represented at the hearing where you too will be allowed to present your case and any evidence you wish.

It certainly is not your duty to assist the company to gather evidence against you (by, for instance, undergoing a polygraph test). My immediate feeling is, that if they did have enough evidence to charge you with, the lie detector test would not be necessary.

So, if I were in your position, I would write the company and tell them that you are not willing to submit to a test and that they should either charge you or allow you to return to your duties.

I hope this answered your question.

I know it will take an extra minute of your time to rate my service, but if you do not rate it, I do not get paid by the website so I would really appreciate it if you would be so kind as to rate my service positively. Feel free to ask further questions here on this topic at no extra cost if you need more information.

Regards

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Customer reply replied 1 month ago
Good day this means they cannot terminate me for not doing it I feel that everything that they are doing they are trying to shove me in a corner to resign and I refuse to give them satisfaction and what do I have to do if I don't want to go back to the company the reason for this is because this was not done correctly as every store in the area know what is happening and they cannot give me clear charges of what I did wrong so now they doing everything to get me to leave by breaking my spirit and by slandering my name in the other stores how should I go about this please assist

OK, what you are asking me know is not really a legal question.

You have to make a decision about your future, and no one can do it for you. You do however have a choice - fight them, or (as you say) resign. If they are trying to force you to resign, then end result will be that you can (again) go back to the 1st option, namely to fight them. You can resign and claim unfair dismissal on the grounds of a constructive dismissal, but that just puts you right back to square one. You can claim to be re-instated, or to be compensated. Compensation will probably be for a period of approximately 3 to 6 months, depending on the circumstances.

Again, as I said in my initial answer - if I were in your position, I would write to the company and say that I am innocent of whatever they have suspended me for, and then I will inform them to either charge me properly and hold a disciplinary hearing, or to lift the suspension and allow me to return to my work.

Please remember to rate the answer positvely.

Regard s

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Customer reply replied 1 month ago
It does not look like they want to charge me because they don't know what to charge me on that is why they are using dereliction of duty but they don't have actual evidence and the fact that they are victimising me as well I've been in the company for 14 years not one warning nothing that's why I do not want to go back and the regional also told me that I was useless at my job in front of all the staff do you advise I get a union representative or a labour lawyer to represent me but that's a problem they don't allow outside representation at any meetings so that is not going to help much it must be within the company

Well, it depends on what meeting you are referring to. Place them on terms to charge you or to let you return to work.

Get the assistance of an attorney in your area to draft a letter.

Then, also start with a grievance procedure against the managers or supervisors who are victimising you.

Please remember to rate the answer positively.

Regards

Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2,803
Experience: Practicing attorney and conveyancer with 16 years post article experience.
Verified
Freddie Lombard and 87 other South Africa Law Specialists are ready to help you
Ask your own question now

Thank you so much for the positive rating. I hope I can be of assistance to you again in the future.

You may request me personally.

http://www.justanswer.com/law/expert-fwlombard1/

Regards

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Customer reply replied 1 month ago
Hi there do you know of any good labour lawyers in cape Town that can assist me please

I cannot make a referral, but you can find one at www.attorneys.co.za.

You can search for one that specialises in labour matters.

Regards

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Customer reply replied 1 month ago
Good morning I have chatted to you prior I have been charged first charge is employing an associate that is family of another the Area was made aware and she turned around and said she did not know, for not managing markdowns resulting in a financial loss to the company but I was never notified about this and staff fraud but with the staff fraud I was on annual leave at the time the sales was processed what do I do now
Customer reply replied 1 month ago
the policy states that family can be employed as long as their is no conflict of interest and the fact that the associate is working there almost a year no one said anything about it and they don't stay on the same property and they have different surnames. But these charges do not correspond with the dereliction of duty which was the reason for my suspension what advice do you have for me

My advice remains the same - if they do not want to charge you, they must allow you back to work.

If they charge you properly, then at least you can defend yourself.

Regards

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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