Asked by the Customer on 26-07-2014 16:19:20
Question posted in the General Law category relating to Gauteng
Question posted in the General Law category relating to Gauteng
Good day.
Kindly provide me with advice on how I should proceed with the following matter: My ex employer is threatening me with lawyers and refusing to pay out all the overtime I worked since I started there.
I started 15 April 2014 & resigned with immediate effect 11 July 2014 from Africa International Training Facilities. I simply could not accept the inconsistency of the owner, the unethical behaviour and in my opinion some fraudulent activities taking place on a daily basis.
I worked there just under 3 months. They asked me to draw up my own contract which I did following the basic conditions of Employment act. The owner never wanted to sign my contract or any other new employee's contract for that matter(he once made the comment “only dishonest people want a contract” - I was shocked and just kept silent). The owner also never wanted to pay overtime to anyone but expected staff to always be available on their cell phones after hours.
The owner and I had many discussions about 'overtime' and I made him aware that due to the huge backlog in their Quality management and outdated documents I needed to work during my lunchtime each day and a lot of overtime at night & even weekends. He would even phone me after working hours and ask me to do tasks. I was willing to do all of this, knowing in turn he would give me time off as discussed for all the overtime I worked instead of money (no contract again - a verbal agreement only).
NB: I was under the impression that I would be working for this business for many years to come and this arrangement suited me, so I did not mind not getting paid overtime as I would get time off which I valued more as I was planning on spending it with my children.
I designed and developed many new documents and procedures for them using my own laptop. i.e. I still have the documents on my laptop. I however have proof on my e-mails that I always forwarded the documents to the company's e-mail addresses with instructions for them to save the documents.
My Problem: I sent them an e-mail after I resigned with the breakdown of all the overtime I worked and requested that as I never received the time off as agreed before I resigned, I would like to be compensated for all the overtime I put in. They simply ignored my e-mail. I sent another e-mail as well as SMS messages requesting feedback if my salary would be paid at the end of July 2014 & the overtime I requested. No response.
Yesterday I received an e-mail from their office stating the owner demanded I provide them with all the information I have on my laptop immediately. I responded that I would give them everything as soon as I have received my salary. I stated that I had lost all my trust in the business. My reason being that clearly they were ignoring my requests regarding needing confirmation that I would be paid.
Another factor was that employees working at the business informed me that if people resigned from AITF the person would struggle to get their last salary from them. According to what they told me one lady had to even go to the CCMA to get her salary. This obviously gave me cause for concern and was the reason I did not want to release any document to them even though they already received everything via e-mail and I even made a copy onto their external hard drive as well as memory sticks of the folder on my laptop.
I never kept any of their original hard copies. I even created new files for them with the documents I designed inside for easy reference. When I packed up my personal belongings the day I resigned, I had 3 witnesses and I made sure to tell them to check what I was taking that no one could accuse me of stealing anything.
Today 24 July 2014 I received an e-mail from the owner (he was a lawyer previously) threatening me with lawyers and getting the high court to order me to release all the documents to them within 24 hours. The e-mail also stated that I would be responsible for all their legal costs?? According to them I am now illegally in possession of their documents but at the same time I am not allowed to delete any of these documents from my laptop as per their e-mail??
They also made it very clear I was never entitled to receive paid overtime and they would not give me this money even though I included this standard clause in my contract as per the basic conditions of employment act. They stated I was blackmailing them for the overtime money even though I clearly sent them numerous requests to provide me with clarity regarding the money I felt they owed me? It was not my intention to create the impression I was blackmailing them & stealing their property. I just wanted them to confirm they would pay what they owed me. I felt the documents I still have on my laptop is my only leverage to bargain with. I did after all design the documents and it is my intellectual property I used to their benefit.
They also want the password to the e-mail address I created with my personal details on “gmail” to receive work related matters, as their e-mail system was in such a mess I could not use it or even link it to my laptop.
My Questions:
1. Should I just accept everything and give them access to my laptop to copy the documents?
2. Should I also just provide them with my e-mail password created with my personal information?
3. What rights do I have as they did not even sign my contract?
4. Can I wait until I at least receive my salary for the 8 days I worked in July before I hand everything over to them?
5. If they should proceed with contacting a lawyer can it be expected that I pay their legal fees?
Note: There is a lot of detail which I am including below to give you a better understanding of my experiences and what I have observed which lead to my resignation.
On the 15th of April 2014 I started working at this small Training school. Originally when I went for the interview it was for the position of Secretary with a salary of R15 000 pm. I applied for this position as I was looking for something close to home with shorter hours to enable me to spend more quality time with my family. When I was interviewed by the owners they made it clear that they needed someone with my knowledge and skills to fulfil a much larger role (I had seen a position advertised for a Manager for AITF as well but it had expired).
During our discussion there were talks that I would be the manager but I could choose my own title as they were not bothered with such things. I decided on Learning & Development Office Specialist. I selected this title based on our discussion of the role they would like me to fulfil i.e. the person in charge of all training related matter as well as ensuring Quality control and Management of all training related documents/procedures.
During the interview I highlighted the fact that the salary they were offering was very low for the change in scope and it would have to be looked at when I started working there based on my assessment of their needs and the duties I would have to perform.
The owner who is also the manager/director/CEO etc. (titles do not matter to him) introduced me to all the employees on my second working day as 'the person in charge' when he is not around (which was a lot - he was always driving around and out of office. To this day I can't really say what he did. He never did any paperwork, just spent time on his cell??).
I therefore instantly became the 'manager' and added this to my title - L & D Office Specialist (Manager). All the staff came to me with their concerns, issues, complaints and anything they had been unhappy about for years. They expected me to address all these matters with the owner and find a solution.
I also had to take responsibility for everything in the office including all HR duties and managing everything from student complaints to handling the petty cash on a daily basis.
Within the first week I had clearly identified that their administration and all paperwork had a huge gap. I could not trace any actions taken after 2012. Everything I looked at was outdated, had expired or was simply not in place as required by their own policies & procedures as well as the basic conditions of employment act. They did not have up to date minutes documenting all critical meetings including health & safety, review of policies meetings, learning & development meeting and general staff meeting.
Their employee's personnel files were not updated and did not even have a general information form completed by the employee. Contracts were outstanding or not signed by the employer.
Some of the learning material they used had another training provider's name on it. The office staff was instructed to just tip-pex the name out and then they could make photocopies of the material. (Is this not plagiarism? What about copyrights)
During this time I offered to use my personal laptop as there was not an available computer for me. The 2 computers in the office were being used already and the files on them was a total mess. I did ask the owner to supply me with a computer but this never happened. I did not mind using my personal laptop in the beginning, as I had a job to do and I did not want to struggle with sharing computers & searching for information constantly in their unorganised database. I also worked a lot of overtime from the start at home to try and achieve some sort of order including updated documents and putting new documents in place where there was nothing previously.
Less than two weeks into the position an audit was scheduled with MerSETA to audit the business and then re-accredit them as their accreditation expires November 2014.
MerSETA identified 8 findings which needed to be corrected. This is when I started noticing unethical behaviour. I would mention things I noticed to the owner and he would make light of the importance of the correct procedure or just cut me off while I was still trying to explain my concerns to him. On time he very rudely interrupted me and told me to just keep quiet and do as he says! To him making money is more important than paperwork.
They would state things was done but just not documented during the audit. They would quickly phone 'contacts' and obtain another accredited facilitator/assessor/moderator’s details including his documents and then tell MerSETA they would be signing a contract with this person to work at their business shortly. This would then satisfy MerSETA and they would pass that requirement of the audit. I was not aware they were not being honest at that stage.
A month later I asked the owner so when is this new employee with all the great qualifications starting according to your discussion with MerSETA during the audit? His answer: NEVER, he just got the person's documents from a friend at another training college to pass the audit. The office must simply open a personnel file for this person and state he works for them on a “contract basis”(Is this not fraud or at least unethical?). I believe this person is not even aware that his credentials are being used like this.
When I received my first salary for half a month's work at the end of April 2014 I discovered that there was no deduction?? I queries this with the office staff and was informed that everyone's salaries agreed with them was a Nett salary and they have not receive payslips for years. This was a huge red flag for me!! I did not want to get in trouble with SARS. I started asking more questions and discovered that some employees have been working at this company for 2-5 years without receiving payslips.
At this stage I started to query this. The owner's wife (also a director) told me that she was only now arranging for the employees to be registering for UIF. They indicated on the forms the longest working employee they had was only 6 months! (Once again is this not fraud?)
When I asked about PAYE which needed to be deducted from my salary I was informed that this must still be 'sorted out' for all employees. I felt very uncomfortable about this situation but was hopeful as I was now working there I could get the owners to follow the correct procedures.
I mentioned to the owner that what they expected from me was the work of more than 2 people. He informed me that he was aware there was a huge amount of work and he would increase my salary to R17 000pm. This gave me hope that they valued my knowledge and input into the correct way forward.
At the end of June 2014 I finally received a salary slip as well as all the other staff. It clearly showed they had deducted PAYE and UIF but I strongly believe the PAYE was never paid to SARS for anyone. To my knowledge this constitutes fraud??
I know their health and safety certificate has expired in May 2014. I arranged for a qualified professional to do an audit. They were not happy with his findings and low score and I was told they 'know someone' who can help them obtain a new certificate. When I resigned this was still not in place?? They are training students without this document. There are also no updated signed agreements with employees indicating who is the health and safety officer and First aider.
The longer I worked there the more disillusioned I became. I felt very uncomfortable about the way they conducted business. Always chasing money and only applying a short term fix when a problem was identified. I worked in the banking environment for almost 15 years. I was taught honesty, integrity, ethics and moral values are key and if you did anything to contravene these points your job was on the line and you could be prosecuted in a court of law.
When the owners went on holiday for 12 days to Mauritius I was already on the verge of resigning. Just before they left on the 1st of July the owner was shouting in the office because money had not come in. One of his 'deals' to get business had problems with the paperwork as someone was given 'incentive' to get them the contract and this person did not ensure the payment went through.
He was shouting in the office the staff is going to get a big surprise as there will not be enough money to pay their salaries. On the 1st of July 2014 just before they had to board their flight the owner was still running around trying to pay the employees portions of their salaries which should have been paid the last working day of the month. We had to wait 2 days to get the rest of our salaries while they were enjoying their overseas holiday? Is this moral to pay for a luxury holiday but not ensure there is enough money to pay your employees on time?
They were constantly phoning from Mauritius to find out when the outstanding money for training delivered would be paid to them. All this time I had to handle all the people they owe money to and did not pay on time. I finally had enough when the owner sent a message 2 weeks later via one of the trainers that all staff was required to work until 16h00 on Fridays again after he had approved the request by the employees to change the time to 13h00 more than a month ago. They were allowed to leave early previously and he then just changed his mind.
In a meeting the previous month the employees requested I address this matter as the new manager and the owner agreed to the change. The time is even indicated in some of the employees' contracts. I also amended my contract with this time.
The owner sent me a very rude e-mail stating there was never an agreement that staff may leave at 13h00 on Fridays. It was a privilege and not a right. He mentioned that we were not at a vacation farm. This truly offended me deeply as I had been working so many hours overtime. Then the owner went so far as to state in the e-mail that I was never the 'manager', I was the 'training manager' only. He also stated when he returned from leave he wanted a meeting to enforce HIS rules again and he would be appointing the facilitator he was in contact with as the Site Manager.
I just could not take the dishonesty anymore and immediately resigned due to the fact that I had lost all trust and respect for a person who could be so dishonest and two faced.
This brings me to where I find myself now. Should I report all these irregularities I have uncovered to the relevant parties? I never signed a confidentiality agreement either.
Your advice and guidance would be greatly appreciated.
Yours sincerely
Jenny Smith
082-695-9527
Kindly provide me with advice on how I should proceed with the following matter: My ex employer is threatening me with lawyers and refusing to pay out all the overtime I worked since I started there.
I started 15 April 2014 & resigned with immediate effect 11 July 2014 from Africa International Training Facilities. I simply could not accept the inconsistency of the owner, the unethical behaviour and in my opinion some fraudulent activities taking place on a daily basis.
I worked there just under 3 months. They asked me to draw up my own contract which I did following the basic conditions of Employment act. The owner never wanted to sign my contract or any other new employee's contract for that matter(he once made the comment “only dishonest people want a contract” - I was shocked and just kept silent). The owner also never wanted to pay overtime to anyone but expected staff to always be available on their cell phones after hours.
The owner and I had many discussions about 'overtime' and I made him aware that due to the huge backlog in their Quality management and outdated documents I needed to work during my lunchtime each day and a lot of overtime at night & even weekends. He would even phone me after working hours and ask me to do tasks. I was willing to do all of this, knowing in turn he would give me time off as discussed for all the overtime I worked instead of money (no contract again - a verbal agreement only).
NB: I was under the impression that I would be working for this business for many years to come and this arrangement suited me, so I did not mind not getting paid overtime as I would get time off which I valued more as I was planning on spending it with my children.
I designed and developed many new documents and procedures for them using my own laptop. i.e. I still have the documents on my laptop. I however have proof on my e-mails that I always forwarded the documents to the company's e-mail addresses with instructions for them to save the documents.
My Problem: I sent them an e-mail after I resigned with the breakdown of all the overtime I worked and requested that as I never received the time off as agreed before I resigned, I would like to be compensated for all the overtime I put in. They simply ignored my e-mail. I sent another e-mail as well as SMS messages requesting feedback if my salary would be paid at the end of July 2014 & the overtime I requested. No response.
Yesterday I received an e-mail from their office stating the owner demanded I provide them with all the information I have on my laptop immediately. I responded that I would give them everything as soon as I have received my salary. I stated that I had lost all my trust in the business. My reason being that clearly they were ignoring my requests regarding needing confirmation that I would be paid.
Another factor was that employees working at the business informed me that if people resigned from AITF the person would struggle to get their last salary from them. According to what they told me one lady had to even go to the CCMA to get her salary. This obviously gave me cause for concern and was the reason I did not want to release any document to them even though they already received everything via e-mail and I even made a copy onto their external hard drive as well as memory sticks of the folder on my laptop.
I never kept any of their original hard copies. I even created new files for them with the documents I designed inside for easy reference. When I packed up my personal belongings the day I resigned, I had 3 witnesses and I made sure to tell them to check what I was taking that no one could accuse me of stealing anything.
Today 24 July 2014 I received an e-mail from the owner (he was a lawyer previously) threatening me with lawyers and getting the high court to order me to release all the documents to them within 24 hours. The e-mail also stated that I would be responsible for all their legal costs?? According to them I am now illegally in possession of their documents but at the same time I am not allowed to delete any of these documents from my laptop as per their e-mail??
They also made it very clear I was never entitled to receive paid overtime and they would not give me this money even though I included this standard clause in my contract as per the basic conditions of employment act. They stated I was blackmailing them for the overtime money even though I clearly sent them numerous requests to provide me with clarity regarding the money I felt they owed me? It was not my intention to create the impression I was blackmailing them & stealing their property. I just wanted them to confirm they would pay what they owed me. I felt the documents I still have on my laptop is my only leverage to bargain with. I did after all design the documents and it is my intellectual property I used to their benefit.
They also want the password to the e-mail address I created with my personal details on “gmail” to receive work related matters, as their e-mail system was in such a mess I could not use it or even link it to my laptop.
My Questions:
1. Should I just accept everything and give them access to my laptop to copy the documents?
2. Should I also just provide them with my e-mail password created with my personal information?
3. What rights do I have as they did not even sign my contract?
4. Can I wait until I at least receive my salary for the 8 days I worked in July before I hand everything over to them?
5. If they should proceed with contacting a lawyer can it be expected that I pay their legal fees?
Note: There is a lot of detail which I am including below to give you a better understanding of my experiences and what I have observed which lead to my resignation.
On the 15th of April 2014 I started working at this small Training school. Originally when I went for the interview it was for the position of Secretary with a salary of R15 000 pm. I applied for this position as I was looking for something close to home with shorter hours to enable me to spend more quality time with my family. When I was interviewed by the owners they made it clear that they needed someone with my knowledge and skills to fulfil a much larger role (I had seen a position advertised for a Manager for AITF as well but it had expired).
During our discussion there were talks that I would be the manager but I could choose my own title as they were not bothered with such things. I decided on Learning & Development Office Specialist. I selected this title based on our discussion of the role they would like me to fulfil i.e. the person in charge of all training related matter as well as ensuring Quality control and Management of all training related documents/procedures.
During the interview I highlighted the fact that the salary they were offering was very low for the change in scope and it would have to be looked at when I started working there based on my assessment of their needs and the duties I would have to perform.
The owner who is also the manager/director/CEO etc. (titles do not matter to him) introduced me to all the employees on my second working day as 'the person in charge' when he is not around (which was a lot - he was always driving around and out of office. To this day I can't really say what he did. He never did any paperwork, just spent time on his cell??).
I therefore instantly became the 'manager' and added this to my title - L & D Office Specialist (Manager). All the staff came to me with their concerns, issues, complaints and anything they had been unhappy about for years. They expected me to address all these matters with the owner and find a solution.
I also had to take responsibility for everything in the office including all HR duties and managing everything from student complaints to handling the petty cash on a daily basis.
Within the first week I had clearly identified that their administration and all paperwork had a huge gap. I could not trace any actions taken after 2012. Everything I looked at was outdated, had expired or was simply not in place as required by their own policies & procedures as well as the basic conditions of employment act. They did not have up to date minutes documenting all critical meetings including health & safety, review of policies meetings, learning & development meeting and general staff meeting.
Their employee's personnel files were not updated and did not even have a general information form completed by the employee. Contracts were outstanding or not signed by the employer.
Some of the learning material they used had another training provider's name on it. The office staff was instructed to just tip-pex the name out and then they could make photocopies of the material. (Is this not plagiarism? What about copyrights)
During this time I offered to use my personal laptop as there was not an available computer for me. The 2 computers in the office were being used already and the files on them was a total mess. I did ask the owner to supply me with a computer but this never happened. I did not mind using my personal laptop in the beginning, as I had a job to do and I did not want to struggle with sharing computers & searching for information constantly in their unorganised database. I also worked a lot of overtime from the start at home to try and achieve some sort of order including updated documents and putting new documents in place where there was nothing previously.
Less than two weeks into the position an audit was scheduled with MerSETA to audit the business and then re-accredit them as their accreditation expires November 2014.
MerSETA identified 8 findings which needed to be corrected. This is when I started noticing unethical behaviour. I would mention things I noticed to the owner and he would make light of the importance of the correct procedure or just cut me off while I was still trying to explain my concerns to him. On time he very rudely interrupted me and told me to just keep quiet and do as he says! To him making money is more important than paperwork.
They would state things was done but just not documented during the audit. They would quickly phone 'contacts' and obtain another accredited facilitator/assessor/moderator’s details including his documents and then tell MerSETA they would be signing a contract with this person to work at their business shortly. This would then satisfy MerSETA and they would pass that requirement of the audit. I was not aware they were not being honest at that stage.
A month later I asked the owner so when is this new employee with all the great qualifications starting according to your discussion with MerSETA during the audit? His answer: NEVER, he just got the person's documents from a friend at another training college to pass the audit. The office must simply open a personnel file for this person and state he works for them on a “contract basis”(Is this not fraud or at least unethical?). I believe this person is not even aware that his credentials are being used like this.
When I received my first salary for half a month's work at the end of April 2014 I discovered that there was no deduction?? I queries this with the office staff and was informed that everyone's salaries agreed with them was a Nett salary and they have not receive payslips for years. This was a huge red flag for me!! I did not want to get in trouble with SARS. I started asking more questions and discovered that some employees have been working at this company for 2-5 years without receiving payslips.
At this stage I started to query this. The owner's wife (also a director) told me that she was only now arranging for the employees to be registering for UIF. They indicated on the forms the longest working employee they had was only 6 months! (Once again is this not fraud?)
When I asked about PAYE which needed to be deducted from my salary I was informed that this must still be 'sorted out' for all employees. I felt very uncomfortable about this situation but was hopeful as I was now working there I could get the owners to follow the correct procedures.
I mentioned to the owner that what they expected from me was the work of more than 2 people. He informed me that he was aware there was a huge amount of work and he would increase my salary to R17 000pm. This gave me hope that they valued my knowledge and input into the correct way forward.
At the end of June 2014 I finally received a salary slip as well as all the other staff. It clearly showed they had deducted PAYE and UIF but I strongly believe the PAYE was never paid to SARS for anyone. To my knowledge this constitutes fraud??
I know their health and safety certificate has expired in May 2014. I arranged for a qualified professional to do an audit. They were not happy with his findings and low score and I was told they 'know someone' who can help them obtain a new certificate. When I resigned this was still not in place?? They are training students without this document. There are also no updated signed agreements with employees indicating who is the health and safety officer and First aider.
The longer I worked there the more disillusioned I became. I felt very uncomfortable about the way they conducted business. Always chasing money and only applying a short term fix when a problem was identified. I worked in the banking environment for almost 15 years. I was taught honesty, integrity, ethics and moral values are key and if you did anything to contravene these points your job was on the line and you could be prosecuted in a court of law.
When the owners went on holiday for 12 days to Mauritius I was already on the verge of resigning. Just before they left on the 1st of July the owner was shouting in the office because money had not come in. One of his 'deals' to get business had problems with the paperwork as someone was given 'incentive' to get them the contract and this person did not ensure the payment went through.
He was shouting in the office the staff is going to get a big surprise as there will not be enough money to pay their salaries. On the 1st of July 2014 just before they had to board their flight the owner was still running around trying to pay the employees portions of their salaries which should have been paid the last working day of the month. We had to wait 2 days to get the rest of our salaries while they were enjoying their overseas holiday? Is this moral to pay for a luxury holiday but not ensure there is enough money to pay your employees on time?
They were constantly phoning from Mauritius to find out when the outstanding money for training delivered would be paid to them. All this time I had to handle all the people they owe money to and did not pay on time. I finally had enough when the owner sent a message 2 weeks later via one of the trainers that all staff was required to work until 16h00 on Fridays again after he had approved the request by the employees to change the time to 13h00 more than a month ago. They were allowed to leave early previously and he then just changed his mind.
In a meeting the previous month the employees requested I address this matter as the new manager and the owner agreed to the change. The time is even indicated in some of the employees' contracts. I also amended my contract with this time.
The owner sent me a very rude e-mail stating there was never an agreement that staff may leave at 13h00 on Fridays. It was a privilege and not a right. He mentioned that we were not at a vacation farm. This truly offended me deeply as I had been working so many hours overtime. Then the owner went so far as to state in the e-mail that I was never the 'manager', I was the 'training manager' only. He also stated when he returned from leave he wanted a meeting to enforce HIS rules again and he would be appointing the facilitator he was in contact with as the Site Manager.
I just could not take the dishonesty anymore and immediately resigned due to the fact that I had lost all trust and respect for a person who could be so dishonest and two faced.
This brings me to where I find myself now. Should I report all these irregularities I have uncovered to the relevant parties? I never signed a confidentiality agreement either.
Your advice and guidance would be greatly appreciated.
Yours sincerely
Jenny Smith
082-695-9527
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