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Thank you for the 100th milestone and the suggestion of bypassing internal processes. I’ve read the input from Patrick and tend to agree with him. It becomes very difficult to prove that the only route the employee could have taken was to resign. There are clearly other routes such as the internal mechanism and or referral to external dispute resolution bodies such as the CCMA.
In essence a person relying on constructive dismissal has to show that the behaviour evidenced by the employer was so egregious that no one could have been expected to stay in the employ and this must be coupled with the fact that there was no other reasonable route that that employee could have followed.
Therefore I strongly believe that the scenario painted is definitely not a constructive dismissal.
I have read Patrick Deale opinion and I’m very much in line with it, however if there is a trade union involved it would have to have their consent.
Thank you to Anna Peal for her opinion. I still very much differ in that a disciplinary enquiry is not a formal court case and an employer is not bound by the actual bidding of the notification to appear at the disciplinary enquiry. The employer can send an addendum to that as it doesn’t require any further evidence of outline of the wrong doing. The wrong doing remains the same.
It would be important to also have a look at the Code of Good Practice in the business and in particular the disciplinary code.
If necessary they can even postpone the disciplinary enquiry. Assaulting a colleague almost every single reason would be good grounds to terminate the employment relationship.
In essence an assault in all circumstances warrants a dismissal. It does appear that they have “charged” the employee at the disciplinary hearing with the least liability. Bringing an employers name in to disrepute does require at least some proof and there doesn’t seem to be much here at all. However, if this assault took place in front of customers this would be vastly different. The HR manager can show on a balance of probabilities that an assault in a supermarket which is normally busy does lead to disrepute and this does not need to be proved beyond all reasonable doubt. This is a civil and administrative action and only has to be proved on a balance of probabilities.
In essence they calculate the severance package on the last payment. If it differs radically such as a commission then you would take the last 3 months into account.
Unfortunately the employee might lose out because of the reduced salary basis, there’s not much you can do about it.
There are literally dozens of factors that need to be taken into account before a court can pronounce on the matter. It is a lengthy and comprehensive exercise that has to be undertaken. The courts normally lean in favour of employment as opposed to independence. It also depends very strongly on how much a person earns.
. In essence there is no question of dual employer ship. If the employee has been placed at the client for more than 3 months and is earning under the threshold they are employed by the client.
. In essence there is no question of dual employer ship. If the employee has been placed at the client for more than 3 months and is earning under the threshold they are employed by the client.
I prefer to disagree with Ingrid in that the first port of call would be the CCMA. Applicants enjoy the same rights as employees.
A suspended employee is still an employee and is able to lodge a grievance. There is nothing standing in their way. You cannot just reject the grievance lodged for that reason alone.
You need to calculate the commissions on the previous three months and on that basis you pay for the sick leave.
My experience has been that the Courts demand all the information that was discussed at the conciliation.
In any event it becomes incredibly difficult to prove that an employee was forced or coerced at the conciliation. The normal practice is to bring in a third party such as a second commissioner to come in and to see that the parties can testify that they were not forced to sign an agreement.
In essence I don’t believe any action can be taken against the individual as he had specifically explained that he felt unwell and he was given a pain tablet. Many pain tablet are soporific in that they contain codeine. A dismissal was much to harsh in this situation.