Asked by the Customer on 10-04-2015 15:04:13
Question posted in the General Law category relating to Western Cape
Question posted in the General Law category relating to Western Cape
I receieved an LRA Form 7.11 ' Referral for Conciliation. The applicant claims I offered her a job and that because of this she resigned from her previous job. She is now seeking 6 months pay.
The form was faxed to me on the 8th April 2015 and the alledged "Unfair dismissal" occured on 21 Nov 2014. On the affidavit the degree of lateness "days late is smudged and illegible. Is it not too late for a conciliation application ?
I submit that I did not offer her a job, neither verbally or by email or any other communication, she came for 2nd interview with her 5 year old daughter at which point I said that we could not continue with a toddler present, as this would be very distracting.
What should I do now
The form was faxed to me on the 8th April 2015 and the alledged "Unfair dismissal" occured on 21 Nov 2014. On the affidavit the degree of lateness "days late is smudged and illegible. Is it not too late for a conciliation application ?
I submit that I did not offer her a job, neither verbally or by email or any other communication, she came for 2nd interview with her 5 year old daughter at which point I said that we could not continue with a toddler present, as this would be very distracting.
What should I do now
Further information relating to Question:
p.s there is no case number on the ccma form (LRA 7.11) or on the Affidavit
Message from the Attorney
Posted by Att. Patrick on 10-04-2015 15:35:40
Hi there and thank you for your question,
In terms of the Labour Relations Act ("LRA"), [i]f the dispute(s) concerns an unfair labour practice the dispute must be referred (i.e. received by the CCMA) within 90 days of the act or omission which gave rise to the unfair labour practice. If more than 90 days has lapsed you are required to apply for condonation.
If the alleged unfair dismissal occured on 21 November 2014, then the last day to refer the dispute would be 19 February 2015. You'll need to check the date with the CCMA, as it is the date that the dispute was referred, not the date that you were faxed the form (i.e. 8 April 2015).
At any rate, even if the dispute was referred late, the applicant could still apply for condonation, but would need to set out good reasons for the delay.
If your defence is that you did not offer her a job, then you need to stick to that. Print out some emails, letters, whatever you can and take them along. Hopefully these documents will show that while you were thinking about offering her a job, you NEVER did.
At the conciliation hearing you should make a point of asking her for proof of the job offer, and/or of the actual employment.
You can read up on the CCMA website as to the process of conciliation: http://www.ccma.org.za/Display.asp?L1=32&L2=12
If she never started working for you (i.e. you never offered her a job and she never accepted the job) then it is impossible for you to have dismissed her.
You could also contact her previous boss to ask him a little bit about the background of why she resigned from her old job, when she did so, etc, etc. Maybe she was fired from her old job and she is pretending that she resigned ...
P.S. You will be contacted telephonically by a commissioner from the CCMA to let you know the date, place and time of the conciliation hearing. If you received the form 2 days ago, the hearing will probably be in about 4 weeks time!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
In terms of the Labour Relations Act ("LRA"), [i]f the dispute(s) concerns an unfair labour practice the dispute must be referred (i.e. received by the CCMA) within 90 days of the act or omission which gave rise to the unfair labour practice. If more than 90 days has lapsed you are required to apply for condonation.
If the alleged unfair dismissal occured on 21 November 2014, then the last day to refer the dispute would be 19 February 2015. You'll need to check the date with the CCMA, as it is the date that the dispute was referred, not the date that you were faxed the form (i.e. 8 April 2015).
At any rate, even if the dispute was referred late, the applicant could still apply for condonation, but would need to set out good reasons for the delay.
If your defence is that you did not offer her a job, then you need to stick to that. Print out some emails, letters, whatever you can and take them along. Hopefully these documents will show that while you were thinking about offering her a job, you NEVER did.
At the conciliation hearing you should make a point of asking her for proof of the job offer, and/or of the actual employment.
You can read up on the CCMA website as to the process of conciliation: http://www.ccma.org.za/Display.asp?L1=32&L2=12
If she never started working for you (i.e. you never offered her a job and she never accepted the job) then it is impossible for you to have dismissed her.
You could also contact her previous boss to ask him a little bit about the background of why she resigned from her old job, when she did so, etc, etc. Maybe she was fired from her old job and she is pretending that she resigned ...
P.S. You will be contacted telephonically by a commissioner from the CCMA to let you know the date, place and time of the conciliation hearing. If you received the form 2 days ago, the hearing will probably be in about 4 weeks time!
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Message from the Customer
The form / affidavit says "The respondent must within 14 days of receipt of this affidavit file an Opposing Affidavit" ↠Do I do this , or do I wait for the commissioner to contact me ?
Message from the Customer
Thanks for the info: The matter was referred on 22 January 2015. (so permissable - as u hv pt out) Her Reason for lateness : "Was trying to negotiate with e previous employer since the new employer did not full-fil his promise"
Message from the Customer
Lastly, Her Workers Permit was expiring in 22 Dec 2014 ( She is Zimbabwean ). Please advise on my last 3 additions. As I would like to clear this matter.
Message from the Attorney
Posted by Att. Patrick on 11-04-2015 13:35:59
Hi there,
If the hearing is only for a conciliation, then there is no need to file an opposing affidavit. (Remember that it is a general form which needs to apply in many circumstances) If the hearing is for a con-arb, then you will need to file your affidavit.
Conciliation: http://www.ccma.org.za/Display.asp?L1=32&L2=12
Con-Arb: http://www.ccma.org.za/Display.asp?L1=32&L2=14
From what you've said above, it looks to me as if it is for a conciliation only. Wait for the commissioner to contact you. Confirm with him/her that it is a conciliation only. Confirm that if it moves to an arbitration you will want to file an opposing affidavit and postpone to a future date so that you can prepare.
Well, she now says "fulfil his promise". That is something less than an agreement! Question her on whether it was some form of promise, or whether there was an agreement in place!
You should definitely bring up the workers permit issue. You can't employ somebody if they don't have a workers permit - so WHY would you have broken the law to employ her? You wouldn't...
Good luck!
If the hearing is only for a conciliation, then there is no need to file an opposing affidavit. (Remember that it is a general form which needs to apply in many circumstances) If the hearing is for a con-arb, then you will need to file your affidavit.
Conciliation: http://www.ccma.org.za/Display.asp?L1=32&L2=12
Con-Arb: http://www.ccma.org.za/Display.asp?L1=32&L2=14
From what you've said above, it looks to me as if it is for a conciliation only. Wait for the commissioner to contact you. Confirm with him/her that it is a conciliation only. Confirm that if it moves to an arbitration you will want to file an opposing affidavit and postpone to a future date so that you can prepare.
Well, she now says "fulfil his promise". That is something less than an agreement! Question her on whether it was some form of promise, or whether there was an agreement in place!
You should definitely bring up the workers permit issue. You can't employ somebody if they don't have a workers permit - so WHY would you have broken the law to employ her? You wouldn't...
Good luck!
Answer Accepted
This answer was accepted on 13-04-2015 07:28:06
Message from the Customer
Thank-you for your most valued information, It has certainly clarified the issue for me and allowed me to take the necessary steps.
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