# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Constructive Dismissal, Legal Advice...please

## JMarais

Howsit guys

Just want to get your opinions on this matter.

My Girlfriends father got fired for theft today (monday), for alledgedly stealing a monitor (Value like R400).

He is the MANAGER of Glass company in CPT, pretty big company.I swear and vouch for Him that he didnt do it, very honest man.

Story goes, 

Saturday morning he went into work to go fix the 1 jet on the glass cutter, The one monitor wasnt working and he was fiddling with it for a while trying to figure out what this issue is. Didnt get it right and left work. 

Sunday there was a power failure and so forth so he had to go into work (factory closes on weekend), being the only person authorised to do so, to go switch the monitors back on. As monitors go off when there is a power failure. Did what ever other general stuff needed to be done and left work.

Came to work this morning, staff were already there etc and the faulty monitor was missing. Last CCTV footage was on the Saturday before powerfailure on sunday and it was of him fiddling with the monitor. He had a hearing, denied the allegations. He was threatened that the company would lay charges and take him to the police station.
So he forcefully resigned then and there.



They have no proof he stole it,
there is no logical sense for him to do so, its an old monitor with hardly any value,
he manages the place,
he knows there are CCTV camera's watching,
he earns decent money and is an honest guy,

they have grounds for dismissal for theft, but no concrete evidence! He didnt steal it and rates they are trying to FRAME him!

What can he do? Is it unfair dismissal or can he fight them on any grounds.

Its crazy, he is a really decent guy, late 50's. Its just pure madness.

Any advice?

Thanks guys,
Regards, Jason

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## Dave A

Have you read Anthony Sterne's blog entry on constructive dismissal?

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## JMarais

Yes i have, thats why i am asking for input into other possible legal advice.

He did not really have an option not to sign, if he didnt do so they would lay charges and he would be arrested, for a mid 50 year old man with a family who is innocent, this an extremely traumatic experience.

With way case's and crimes are being punished, even upon innocent people. You never know what the outcome is going to be, regardless if you committed a crime or not.

I hope this helps explain the situation he was in?

Regards, Jason

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## tec0

If I may, have this man take a polygraph test. Take the results to the CCMA along with his statement and open the following case; Wrongful dismissal. Hand them the polygraph along with his statement. Allow for a hearing. When he is found innocent he may demand his job back he doesn't have to take any compensation. Secondly demand a letter of apology as this is critical for if something like this happens again. 

If they wish not to reemploy him, then still get the apology letter. Take this along with the CCMA minutes to a lawyer and open a case for "victimisation" Normally when the employer sees this they tend to be more lenient about giving a employee there job back.

If they still refuse him his job follow through with the lawsuit. Ask the lawyer about free legal representation in court. A victimisation case is criminal and because the man cannot afford a lawyer the state must provide him with FREE legal representation.

If the free legal representation is not up to standard it is his legal right to ask for new representation. 

It is in the constitution.

They forced him to sign by questionable means. You cannot state to a person for example: "if you don't sign we will have you arrested" that is intimidation. Judges in general dislike intimidation. It is also illegal.

My advice is get professional help. The CCMA is not bad with this stuff a lawyer will tell you how to go about getting free legal representation as he/she is obligated to do so.

Best of luck to you.

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## Dave A

:Hmmm:  OK - let's focus on this bit then:



> He had a hearing, denied the allegations. He was threatened that the company would lay charges and take him to the police station.
> So he forcefully resigned then and there.


Did they actually say "resign or we're laying charges with the police"?
Exactly how this was put is *very* important.

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tec0 (06-Sep-11)

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## tec0

It is very important yes, in most cases people fear the police innocent and or guilty case and point would be the story Card Balance did. Secondly why was a polygraph never requested? It is not that expensive considering. Thirdly there is no evidence of him actually steeling anything. The more detail you can provide the better. 

That said I find it interesting that the CCTV system failed do to power failure. Normally such a system is connected to some kind of backup generator as a UPS will only last a few minutes "depending on size" you do git big UPS systems "normally very big" that will last for a few hours. But surly there must be a backup generator or something.

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## JMarais

Morning Teco and Dave A. Thanks for the advice thus far. 

I will find out in the course if the day, exactly how the company stated, that he must resign or they would take him to be arrested and charges laid.

Im also on the same track Tec0, with regards to The CCTV, surely it was still on, and must be supported by an UPS. It doesnt make any sense at all, thats why he thinks they trying to frame him or get him out. I have advised him already to go to the CCMA.

Thanks again.

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## tec0

Go do a polygraph test. It can help the case along nicely. It is not "that" expensive. Then it is no longer just his word against their word.

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## Dave A

Funny how we all focus on different things. I'm wondering about what *really* happened to that missing monitor.

The other thing that troubles me is the due process. Just seems unlikely to have progressed to a disciplinary hearing on the same day as the event being discovered, and the employee being charged etc. for a serious transgression. So quitting on the same day...

Lots that isn't adding up at the moment.

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## adrianh

I personally think that he stuffed himself by resigning. What he should have done is to tell to lay charges against him and to prove that he stole the monitor. All that they need to say if he goes to the CCMA is that he resigned of his own accord, that he is now making up a story and that they know nothing of an issue with a monitor. Its going to be his word against theirs.

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## tec0

There are few considerations;

One: The CCTV system cannot function when the power is out. Now normally only the few responsible people will know this. 

Two: The man resigned because they wished to charge him "falsely" and was afraid of the police. Considering that the police was in the media for many things it is "reasonable" for him to fear the police.

Thirdly:  Consider the facts, who have access, is it controlled access? Who had knowledge that the CCTV system was out? Is this the first time something like this happened? 

Forth thing to consider: Why was there no investigation done? "Example groups of interest being interviewed and identified for polygraph testing. 

Rules are "You cannot fire someone out of suspicion alone" You need facts! 

Sadly forcing him to resign in this manner incriminates the company AND him. Make no mistake, that is why a polygraph is so important. 

Regardless of the above it is worth going to the CCMA and complain. Because the company is also guilty of misconduct.

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## adrianh

The only thing I have to say is this: Prove it!

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## tec0

A polygraph will help, it is accepted in general and many companies accept it as "proof" including insurance companies. As far as I know it is also accepted in South African courts so it will benefit his case. 

Then the company must proof that they considered all options, have done a full investigation. As far as I can tell the company didn't consider all the options and didn't do their homework. And if the court and or CCMA pick up on it and it is victimisation then I really do not want to be the responsible person in that company.

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## Dave A

> As far as I know it is also accepted in South African courts so it will benefit his case.


Not purely on its own. By my limited understand, based primarily on the attachment to post 7 here, there really needs to be additional supporting evidence.

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## tec0

I agree 100% that a polygraph cannot stand on its own, that said if I was to argue this case I would point the lack of evidence as evidence. He had reason to be at work so "no motive" he gets good money the monitor is of poor quality not valuable according to the above statement. 

Then there is the lack of physical evidence! No one including the CCTV system saw him taking anything. Basically the case against the employee is actually very weak.

As evidence to this I would ask for the names of everyone that has access to the building "after hours" The list will show that a number of people could have done it because they all had access to the item in question. Now add the polygraph into the mix and it will be hell to discredit "in my opinion"  

So basically they had nothing accept to scare him with "going to the police". Consider this and one can state this alongside the case at hand; If they had a strong case and that the monitor was valuable wouldn't going to the police be the only option? Why demand resignation? I don't know... 

Maybe it is enough maybe not. But fact is your suppose to be innocent until proven guilty. "proven being the key word"

There is just not any proof of anything other than a man working then go home and the next day something is gone. So the only thing they could proof is he was there doing his job??? And they fired him for it...  :Huh:

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## adrianh

No, they didn't fire him, they said that they were going to lay charges with the police. I bet you that if it went to the CCMA they will simply say that he shouldn't have resigned out of fear for case being laid with the police if he is innocent. He reacted impulsively and screwed himself. Whether what you say is true or not, I still mantain that the management will simply say that he resigned of his own free will. There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!

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tec0 (12-Sep-11)

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## Dave A

> So basically they had nothing accept to scare him with "going to the police".


Exactly.

So why did he resign?

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## tec0

> Exactly. So why did he resign?


Well for the most part I am not a mind reader so I wouldn't know  :Stick Out Tongue:  But that said, if he has something to hide then so be it. If not it is only human to be afraid to be raped in a holding cell? Honestly if you where you and you had to face a night in prison where the media made a point to scare the big J out of you would you not rather avoid it? 

He had a choice "resign don't get raped in a holding cell" or don't resign and be raped in holding cell while awaiting the judge to set bail. And get HIV in the process AKA a death sentence. It is not rocket science really?





> There is no way in hell that the company will entertain such nonsense after the fact. If it was me, (as the employer) I would simply laugh it off!


If your actions as the employer were criminal then you don't get to make those decisions anymore. The court does, and it is very serious actually. Victimisation is really a bad situation to be in.

Fact is "and I presume his innocence I do not proclaim it!" *he was pressured*. That much is clear "If all details are as it stands"

The argument is:

Man was pressured to resign "fearing for his life" 

Evidence produced by employer to force the action "weak at best" 

Evidence to the contrary include; *no physical evidence*, *no eye witnesses*, *no investigation* 

You cannot just force an action "any action" based on "you think" it is what the employer can proof. And if our information is any indication they may well be toast.

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## Dave A

So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
On what we all agree seems to be flimsy evidence?

Personally, I don't think so - not without some level of investigation first.

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tec0 (12-Sep-11)

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## BusFact

> So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
> On what we all agree seems to be flimsy evidence?
> 
> Personally, I don't think so - not without some level of investigation first.


Actually, its quite common to arrest for theft. Although the responding officer would hopefully use his head and realise that the suspect is well established in the community and can be easily found again. Plus he is a full time, long term employee of the company so they should have all his contact details. His decision will likely be based on how much the complainant pressures him into believing the man is a flight risk.

That said, there is nothing stopping the policeman taking the cautious route and arresting him, and leaving the decision to the courts for bail. Actual police investigation will be days to weeks down the line. Point being that although its unlikely for there to be an arrest, its not extremely unlikely.

The entity at risk here is the company, as being the complainant they might run the risk of being sued in a civil case for wrongful arrest.

Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.

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tec0 (12-Sep-11)

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## tec0

> Btw. Being arrested is definitely unpleasant, but more so from the humiliation of the event and the feeling of frustration. The instances where it is "life threatening" are extremely rare.


I agree a 100% with everything you typed out. However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim. 

Thus allowing a person to become fearful "Regardless of guilt or innocence"




> So what you're saying is if the company had gone to the police, the guy would have been arrested and taken into police custody?
> On what we all agree seems to be flimsy evidence?
> 
> Personally, I don't think so - not without some level of investigation first.


In all honestly I don't think they would have locked him up on "suspicion" alone. That said consider the following. 

As stated above the police officer may play it safe and lock him up. 

The employer might have been able to convince the police officer somehow. 

The fact is, there is always the possibility for things to go very wrong. And that in itself is a legitimate factor. 

In all honesty can this fact be ignored?

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## BusFact

> ... However one cannot rule out gang rape in a holding cell. There are cases "documented" that people was badly beaten and or raped while waiting for bail. So for someone to imagine he/she will fall victim to the above mentioned is not unrealistic at all. There is an actual possibility that one may fall victim. 
> 
> Thus allowing a person to become fearful "Regardless of guilt or innocence"


It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several  procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.

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tec0 (12-Sep-11)

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## tec0

> It has happened, but it is extremely rare and tends to make headlines. The cops don't like the bad press so have several  procedures in place to prevent such occurences. However that said, it is a very real fear (justified or not) which may well have affected his decision making.


I agree, fear is a powerful emotion and does play an active role in every decision we make. In my opinion I feel it might have been a deciding factor. Again I do not proclaim his innocence; I only wish to highlight the possibility.

Regardless it makes for an interesting case and a good read for any employer.  :Yes:

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## adrianh

Ok, but he still made the decision to leave. It was his choice!

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## sterne.law@gmail.com

Constructive dismissal requires conditions that are unbearable and intolerable - this has not occurred. 
Resigning, pending a disciplinary hearing is not constructive dismissal.
These two factors make a referral in terms of constructive dismissal, a route that is unlikely to be successful.

Can it be referred as a normal dismissal? There is effectively no dismissal because there was a resignation, albeit under duress. To put it into perspective, where there is a settlement agreement, CCMA has no jurisdiction becuase there is a mutual agreement to termination, that is no dismissal. Many settlements are done under duress, "here is your cheque, which I will give you if you sign here" as an example. So despite the duress, the settlement stands and the employee needs to go to Labour Court for it to be struck down.

It becomes hard to validate a persons defence that I was scared etc, if you now refer a matter, claiming duress, becuase in essence the employer still has the threat, of reporting to the police. 

I think it is a hard road, particularly to get past CCMA, but that does not mean do not refer the matter, you deal with road blocks when you get to them.
The other angle is to try and argue that one is still an employee, based on the fact that the resignation is void and not valid due to the duress. How to refer it is a bit trickier, possibly as a mutual interest matter, and in that way try and get it in front of the CCMA and get a ruling.

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tec0 (13-Sep-11)

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## sterne.law@gmail.com

There is some case law and grounds for constructive dismissal when an employee is told resign or face criminal sanction, more particulalry arrest,however it is extremely difficult to get the evidence for this situation. The normal requirements of teh conditions being intolerable and addressing the issues then fall away, so to speak. It now comes to the fact that the employer repudiates the contract and indicates as such. However as I say, it is VERY hard to prove what the employer said, and I would consider finding an alternative route to the constructive dismissal.

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## tec0

I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign. If the minutes have no record of this then what would the argument be for the employer and why else would the employee be asked to resign? Then perhaps an unfair dismissal? Because it was a dismissal in the end? OR will it be seen as a resignation only scenario?

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## Dave A

> I follow, however consider that minutes are kept at each hearing, the minutes must include why the employee was asked to resign.


Unfortunately our OP has gone rather silent, but I've got a hunch this never got to a formal hearing stage. 

Without feedback, I think we're shooting in the dark trying to come to clear conclusions. An interesting excercise in the various possible scenarios, though.

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## tec0

Agreed, we will probably never know the truth.

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