# Regulatory Compliance Category > Labour Relations and Legislation Forum >  Disciplinary Hearing Unfairness

## Laura7

Hi Everybody,
I was suspended pending a hearing that will be held next week.  I am confident that I can answer to all charges and would like to ask one question that bothers me.  We have a new shareholder/director who officially started in February this year.  The charges against me pertain to a period dating between May and December last year, before his time.  Do you think this allowed as I would have thought that the new director was well aware of the history of the company or is he looking for an excuse to get rid of me. By the way, this is the first time in my entire life that I have been suspended and find this ordeal humiliating.

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## roryf

I would first worry about what charges are being given.If serious, then the new director is the least of your worries.If the charges are not so serious then I would ask why you hadn't been charged earlier.

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## HR Solutions

If he is a Directer he basically is one of the owners of the company at present and therefore it doesn't really matter, does it ?
What have you been suspended for ?

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## Laura7

Roryf, thanks for replying.  The charges are that I authorized and paid bonuses without the old director's authority. There is a history behind this story, as we had new controlling managers who approved everything. So therefore I think it is something that I can prove. I am still concerned why the new director is taking action against me.  I feel as though there is a conspiracy to get rid of me.  I also do not know why I was not charged earlier. Perhaps I can raise this question during the hearing?

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## Dave A

> By the way, this is the first time in my entire life that I have been suspended and find this ordeal humiliating.





> I feel as though there is a conspiracy to get rid of me.


Although unsurprising _human_ reactions to your situation, these are inappropriate *emotional* responses to this experience that are more likely to handicap your ability to deal with the crisis than to help. Eradicate them from your mind.

If you have evidence of inconsistent disciplinary standards and practices, that you can raise. (Sidenote - and remember the inconsistency has to be relevant to the charge you're facing or position you are in). But don't go down the "conspiracy" trail unless you are absolutely confident you can prove it.

When your defence is focused on talking to the charges, this demonstrates an underlying belief that you were acting correctly (or in good faith) and are prepared to be judged on your actions.
When your defence is focused on issues other than the charges, it may indicate an underlying lack in confidence that you were acting correctly or in good faith.

If you can show good cause for your actions, that takes first prize every time.

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## sakkie

> Roryf, thanks for replying.  The charges are that I authorized and paid bonuses without the old director's authority. There is a history behind this story, as we had new controlling managers who approved everything. So therefore I think it is something that I can prove. I am still concerned why the new director is taking action against me.  I feel as though there is a conspiracy to get rid of me.  I also do not know why I was not charged earlier. Perhaps I can raise this question during the hearing?


The first question that comes to mind is, why didn't the previous director take action against you? Surely if the payments was unauthorized he should have taken immediate action? Or was he not that involved in the business?

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## Justloadit

> The charges are that I authorized and paid bonuses without the old director's authority.


Does this mean that you have full rights to the bank account, and can make payments on the bank account with out anyone else in the company releasing the payment?

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## Laura7

Thank you for reply,
I will take note and of course I will focus on the charges and prove that I did nothing wrong. In fact I was told that if I present factual evidence then I can rest assured that the truth will prevail.

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## Laura7

No I do not have full rights, I capture payments and the owner/director must authorize final payment. I always assumed they checked the payment before releasing.

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## Justloadit

> No I do not have full rights, I capture payments and the owner/director must authorize final payment. I always assumed they checked the payment before releasing.


So how by capturing the payments, are you responsible for authorization of the payments?
Surely the financial director's fiduciary duty is to check and ensure that all payments released are correct.

Did you calculate and produce the figures for the wages and bonuses?
What exactly is your position in the company?

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## sterne.law@gmail.com

In terms of the backdating, so to speak.
Waiver is a defence whereby if a company failed to take disciplinary action timeously it is considered that they waived their right to take action.
The test is -
When did the company know about a potential misconduct, and
what did they then do.

As an example - If i discover potential fraud but take 4 months to investigate, that is not a waiver, as, by acting I show an interest in exercising my right.
If I know of a misconduct, do nothing, but after 4 months institute a hearing, this *may*constitute a waiver.

The test of waiver for you, is if the company knew and then failed to act. It brings with it, given your case, the potential argument of tacit acceptance.

As to the Directors duty, while they may be at fault, this is not a defence for you, per se. The question is was there a rule and did you break it.
There is certainly an argument, that when the director paid, it constituted consent.

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## Laura7

yes I captured the payments, and it is not my responsibility for authorization of payment.
The HR calculated the figures and I was part of the meeting with the controlling members (not the director) and other staff members to discuss the financial situation of paying the bonuses which by the way is a statutory obligation under the MIBFA main agreement.  
I was employed as a financial manager, but my duties and responsibilities were reduced in 2008 to that of a bookkeeper.

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## Laura7

Thanks Anthony,
I do not think there were any rules, its a small company, and I always believed the directors would check all payments before final authorization. Also my work was transparent, documentation was always available. 
The possible misconduct came about at the beginning of this month, it is the new director responsible since February who was looking into my situation. (I still believe there is a conspiracy to discredit my ability). However, the old director had access to all my work throughout the previous years and never queried my honesty. 
In all honesty I can prove that I was not fraudulent in any of my work matters.

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## Justloadit

> yes I captured the payments, and it is not my responsibility for authorization of payment.
> The HR calculated the figures and I was part of the meeting with the controlling members (not the director) and other staff members to discuss the financial situation of paying the bonuses which by the way is a statutory obligation under the MIBFA main agreement.  
> I was employed as a financial manager, but my duties and responsibilities were reduced in 2008 to that of a bookkeeper.


From the information provided, other staff calculated and instructed you to do the data capturing of the wages, leave pay and bonuses. The reason for the meeting with staff members was probably to discuss the financial situation the company would be in to be able to honour the relevant payments. It seems to me that you acted according to the requirements set out, and whether the amounts were correct or not is out of your scope, as this falls in the realm of the HR and wage clerk. I think that you have proceeded correctly with your duties. The question really is with what is going to be raised at the hearing. It seems to me that the full information has not been disclosed to you at this time, and you may have been fed a red herring.

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## bones

> From the information provided, other staff calculated and instructed you to do the data capturing of the wages, leave pay and bonuses. The reason for the meeting with staff members was probably to discuss the financial situation the company would be in to be able to honour the relevant payments. It seems to me that you acted according to the requirements set out, and whether the amounts were correct or not is out of your scope, as this falls in the realm of the HR and wage clerk. I think that you have proceeded correctly with your duties. The question really is with what is going to be raised at the hearing. It seems to me that the full information has not been disclosed to you at this time, and you may have been fed a red herring.


i agree with you on this one that said 
i would ask for all records from your 
past year and show that you did your 
duties as specified just remember in
any hearing make sure you record 
everything if things go badly you have 
recording on why it did and if it was 
fair or not and can continue to seek 
professional help with the facts in 
your pocket.

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## Laura7

Thank you, and I will make certain to record the proceedings and although I can prove I acted responsibility, I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct. I will post a summary of the hearing and seek further advise.

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bones (13-Mar-16)

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## bones

> Thank you, and I will make certain to record the proceedings and although I can prove I acted responsibility, I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct. I will post a summary of the hearing and seek further advise.


best of luck to you

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## Greig Whitton

> I still believe that at the hearing they might broaden the charges in an attempt to find me guilty of misconduct.


If they do this, immediately request a postponement so that you are afforded an opportunity to prepare for the new allegations. If they deny your request and attempt to dismiss you for charges that they never included with their original hearing notice, you may have grounds for unfair dismissal due to procedural irregularities (note that broadening the charges and denying a postponement is not automatically unfair and unlawful - e.g. if doing so does not substantially change the original charges).

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Citizen X (14-Mar-16)

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## Laura7

Hello everybody,
I want to update you on the hearing.  It was quick and over within an hour. The chairman asked me to lead with evidence and I found that strange. The director harped on about the increase and between him and the chairman I was seldom asked to explain. When I did have an opportunity to speak I was shutdown by the Chairman and he then said that I was dishonest, and that the company cannot work with me. He asked me what the solution is and I answered that I do not know. He then said that if I am dismissed I would never get a job again and recommended that I resign immediate, and sign a waiver against future claims. I asked for a few minutes to make a decision and when I returned I told them that I was not dishonest and want to continue with the hearing. The chairman said I was dismissed immediately. In my opinion, the first charge about authorizing the bonuses was not even discussed and the increase that they claim I had taken was wrong, I tried to explain that my working days increased as per my contract and that I was paid for the time worked but they just never let me finish what I was trying to explain. I now am unemployed and will try to take the case to the CCMA.

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## Dave A

Not that'll be of much consequence in the end, but who was the chairman? An independent or someone from the company?

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## OLSMEDSA

Hi Laura ,
I am new to the forum ,however my two cents for what its worth . The procedure seems a bit iffy at best . Can you tell me the following:
1) Did your notice of hearing provide you with the option to appoint a fellow employee or outside rep to assist?
2) Obviously the company has checks and balance in place when payments are made. Is this contained in written format or just determined by past practice?

Another issue is if you never gained any monetary benefit from the payments then surely the dismissal should not be for dishonesty but rather incompetency /inability to do the work . I suspect such a dismissal would be hard to justify without showing interventions by the company to help you improve . Make sure the proceedings are transcribed and approach the CCMA and get a ruling on both procedural and substantive fairness of the dismissal.

Hope this helps
Arthur 

The above does not constitute nor can it replace legal advice from competent counsel

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## Laura7

Thank you. They asked me if I had representation but I told them there was no one suitable within the company and would represent my self as external representation was not allowed. 
They did not ask or allow me to bring in a witness.
What bothers me most is that I was dismissed during the hearing.  I thought that the chairman would take some time to consider all the facts and delay the action for a day or so. I also thought that it was strange that he asked me when I joined the company and if I had anything to say after I was dismissed.

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## Justloadit

I am sorry to hear of the outcome.
I think the intention to dismiss you was already decided long before they even decided on the hearing, and the hearing was a means of a way to make it sound official.

I suggest that you approach the CCMA immediately, or if you can afford it, get a labour attorney to fight your case.

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## Greig Whitton

> I suggest that you approach the CCMA immediately, or if you can afford it, get a labour attorney to fight your case.


Agreed. Sounds like an open-and-shut unfair dismissal case to me.

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## roryf

As an Employer,I would not like to fight this case at CCMA.The company did not follow proper procedure and will not win at CCMA.

Good luck.

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## Citizen X

> Thank you. They asked me if I had representation but I told them there was no one suitable within the company and would represent my self as external representation was not allowed. 
> They did not ask or allow me to bring in a witness.
> 
> What bothers me most is that I was dismissed during the hearing. I thought that the chairman would take some time to consider all the facts and delay the action for a day or so. I also thought that it was strange that he asked me when I joined the company and if I had anything to say after I was dismissed.


Hi Laura,

I think that you can approach the CCMA confidently on the basis that the dismissal was both substantively unfair and procedurally unfair (not for a fair reason following a fair procedure), for the simple fact that you were acting in an official capacity and carrying out instructions issued to you by a manager who is superior to you in designation. The underlying circumstances are important and this is the transition the company was going through.
The company (respondent) will have to prove to the CCMA that the dismissal was both substantively fair and procedurally fair (Fair reason with a fair procedure).
Though I haven’t seen the findings letter, many employers fail the substantive fairness test because they fail to do consider item 7 of Schedule 8 of the Labour Relations Act 66 of 1995(LRA)

This is what item 7 requires
7.                     Guidelines in cases of dismissal for misconduct

Any person who is determining whether a dismissal for misconduct is unfair should consider -

(a)        whether or not the employee contravened a rule or standard regulating conduct in, or of relevance to, the workplace(*Comment:* what rule or standard did you really contravene? Is there really a rule or standard which states that in your capacity you were not allowed to authorise those payments under instructions from management?); and

(b)        if a rule or standard was contravened, whether or not -

(i)                     the rule was a valid or reasonable rule or standard(*Comment:* I don’t think that the rule or standard is reasonable as you were acting on instructions);

(ii)        the employee was aware, or could reasonably be expected to have been aware, of the rule or standard(*Comment: Here I think you’ll agree that you were unaware that you were prohibited from engaging in the activity which you did)*;

(iii)       the rule or standard has been consistently applied by the employer(*Comment: was the manager who issued you with the instruction also subject to disciplinary action)*; and

(iv)       dismissal was an appropriate sanction for the contravention of the rule or standard(*Comment*: * I don’t think that dismissal was an appropriate sanction as you didn’t act in a malicious and culpable manner)*

 Procedural fairness: You have a right to call witnesses, that fact that you were precluded from doing so is already a _prima facie_ case for procedural unfairness.

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## Laura7

Thank you Vanash Naik, I have made a note of your reply and agree the entire hearing was flawed. I think the chairman played a more active role than a passive role.
Can I ask you another question.  Company A, suspended me and dismissed me. However, during all my years of employment, my scope of work included working for 2 other companies and each paid me a small salary. I received 3 payslips each month. These 2 companies were mentioned in my contract and the old director had a vested interest in both. When I was suspended by company A, I was allowed to continue working for the other companies and when I was dismissed, I was dismissed from all three companies.  The new owner of company A does not have any interests in the other two companies.

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## Citizen X

> Thank you Vanash Naik, I have made a note of your reply and agree the entire hearing was flawed. I think the chairman played a more active role than a passive role.
> Can I ask you another question. Company A, suspended me and dismissed me. However, during all my years of employment, my scope of work included working for 2 other companies and each paid me a small salary. I received 3 payslips each month. These 2 companies were mentioned in my contract and the old director had a vested interest in both. When I was suspended by company A, I was allowed to continue working for the other companies and when I was dismissed, I was dismissed from all three companies. The new owner of company A does not have any interests in the other two companies.


I’m assuming that all 3 companies are private companies i.e Pty Ltd’s. If this is the case each one is a juristic person oe legal person, that each is a company itself and as such a separate legal person.

To illustrate, there is ABC (Pty) Ltd, DEF(Pty) Ltd and GHI (Pty) Ltd. Assuming that the misconduct took place involving strictly and only the authorising of certain payments for ABC(Pty) Ltd, then the two other entities have no grounds to take disciplinary action against you. This is so as no misconduct or alleged misconduct by you took place in one of these three companies and not at all three. 
The evidence that you have is that three different companies furnish you with three different payslips.

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## Laura7

Thank you, yes all three companies are a (Pty) Ltd. Therefore do I submit a CCMA claim for the other two companies on the basis that it was an unfair dismissal.

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## Entropy Group

I would think that you should register disputes with all three companies. If your unfair dismissal claim against company A succeeds, then the other two would also stand. If you fail with A, the other two still had no grounds for dismissal, i.e. substantive and procedural unfair practise. Remember you have 30 days from dismissal to register your dispute.

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