I need advice on how to best reprsesent ...

Asked by RoderickG on 24-02-2021 10:41:20
Question posted in the Property Law category relating to Free State

I need advice on how to best reprsesent a friend in a disciplinary hearing, I have documents that need to be uploaded 

Further information relating to Question:

To whom it may concern I need your legal advice on how to best represent a friend in a disciplinary hearing, where she faces charges of Gross Misconduct by failing to adhere to a verbal instruction given by her employer not to market a property, no written instruction was given to the employee not to market the property, no mandate was signed by seller and estate agency and the property was not placed on any online platform to advertise said property. The attached formal notice to attend a disciplinary hearing on Friday the 26th February 2020 is extremely vague and does not have the following items contained in the notice: 1. The year that this incident occurred as it just has the month of February. 2. The property description, full address of the property in question has not been supplied, so it’s anyone’s guess on which property is being mentioned. 3. Lastly the employee was told to expect a letter to attend a hearing from a company called Labour Stop, the letter has not been placed on an official company letter head, either by the above mentioned company or a letter from the company she works for namely Only Realty. This friend of mine is an estate agent and has sold numerous properties during the pandemic, from last year March 2020 up until now February 2021 has signed 13 offer to purchases and I can’t see any valid reason why an employee can be barred from obtaining as many properties as she wants in order to sell them to earn herself and the company more commission. The above mentioned matter in my opinion has now boiled into a personal matter between employer and employee as the reasons provided for the blocking of the sale is that the employer wanted to purchase the property herself, but as of yet the employer has not provided the seller with a written offer to purchase as bond approval for R515 000 has not being obtained, in February 2020 the company was provided with a cash offer to purchase of R560 000 with R50 000 commission going to the company, the employer rejected the offer on the basis that she wanted to purchase the property. The above mentioned property was initially going to be sold to the existing tenant in March 2019, the tenant pulled out of the deal as the bank was taking too long to provide bond approval, in my opinion if the employer was really interested in purchasing the property, an offer to purchase would have been submitted to the owner by the employer, once the tenant cancelled the offer to purchase. The above mentioned estate agent was severely admonished in front of other employees to the state of breaking down in tears over this property, she was accused of being money hungry, going behind her employers and lying to her employer, the employee later phoned in the afternoon on the same day and apologised for her behaviour in front of the other employees, prior to the letter being issued to attend a formal hearing, the employer said to the employee, that she was going to ask her to attend a hearing and the initial charges were going to be causing reputational harm to the company, now all of a sudden the charges have changed to gross misconduct Lastly in conclusion of all the above mentioned details, the property is now sitting at the deeds office for registration into the new owners name, which is yet to be determined as the employer is constantly checking the light stone property reports portal to find out if the property was sold to the client that initially put in the cash offer to purchase of R560 000, this initial purchase price would have been reduced to an amount of R510 000 to the seller, due to no estate agent commission being paid to the company and the deal was now considered as either a private sale, or it has possibly being sold by another estate agent or company. Kind Regards Roderick Greene

Information provided by client

My apologies slight error in date mentioned for cash offer to purchase, it was February 2021 not February 2020

Information provided by client

NOTICE OF'HEARING
Maureen Schoeman
Property Practitioner
Formal charges have been laid against you.
1. Gross insubordination in that during February you
instruction not to market a certain property.
A formal hearing will be conducted.
NAME: Maureen Schoeman
JOB TITLE: Property Practitioner
DATE: 26 February 2021
TIME: 08h00
Place: On employers premises

Formal charges have been laid against you.

1. Gross insubordination in that during February you failed to comply with a direct instruction not to market a certain property.
failed to comply with a direct
Any application for postponement must reach the office of the employer by not later
than 25 February 2021 at 17h00. This application must be in writing. Please note that there
must be a valid reason.
Your rights during the hearing:
1. The right to a formal hearing.
2. The right to be present at the hearing, should you not be there it will be conducted in your
absence.
3. The right to prepare your case.
4- The right to have a representative of your choice (shop steward or colleague).
5. The right to ask questions to witnesses or about documents used in the hearing.
6. The right to call witnesses to testify on your behalf. Make sure they are present on the day
that the hearing takes place.
7. The right to an interpreter, should you not able to proceed in English'
8. The right to appeal within 5 working days after the hearing.

ACCUSED
WITNESS (if accused refuse to sign)

Information Requested by Lawyer

Posted by Att. Patrick on 24-02-2021 12:30:34

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

Do you mind if I take a moment to review your question? I will come back to you shortly!

Att. Patrick

Information provided by client

Thanks Patrick, I'm patiently waiting for your reply
Kind Regards
Roderick Greene

Answer to the Question

Posted by Att. Patrick on 24-02-2021 13:58:51

Re (1) Okay, so the notice does not have to be perfect or be precise, but it does need to contain sufficient information so as to enable the employee to prepare his/her defence to the charges. I would suggest that the failure to include “2021” behind the date is not material.

Re (2) If both parties know what property is being referred to, then I would say that this isn’t material. However, if the parties don’t actually, truly, know which property, then it might be grounds to get a postponement of the hearing so that the employee can prepare her defence.  But this would be dealt with at the commencement of the hearing.

Re (3) the failure to include a company letterhead is not material.

I don’t think that a charge of gross misconduct is warranted. See here: https://www.labourguide.co.za/discipline-dismissal/71-misconduct

“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”

There is actually a lot that you can read on that labourguide page which will assist you in the hearing. It won’t serve any purpose to copy/paste the whole thing, but you should read the section dealing with misconduct.

I think a good argument which could be used here is that the employer is targeting the employee because the employer wanted to buy the property himself, and basically “changed the rules of play” and gave counter instructions to normal so as to enable him to possibly put in an offer.

Misconduct includes a charge of insubordination.

Insubordination may be described as resistance to or defiance of authority, disobedience, refusal or failure to obey reasonable and lawful instructions, insolence, cheekiness, rudeness, brining the employer's name into disrepute, and rebellious or mutinous behavior resulting in an actual work stoppage. Disciplinary sanctions can include written warning, final written warning or even dismissal – depending on the severity of the offence. 

You can read more about insubordination here: https://www.labourguide.co.za/insubordination

I think that your friend might be found guilty of insubordination if it is shown that she refused to listen to a direct order not to market a specific property, and she did. However the company will need to prove that she marketed the property, but you say that she didn’t … so I’m not sure here.

I think that your best bet is to fight the sanction in that the “crime” doesn’t warrant dismissal, or even a final written warning. Rather a first warning or a written warning.

One of the arguments is that she didn’t actually cause the company to suffer a loss. She was trying to make money for the company. Another argument is the ulterior motive of her boss giving the instruction!

If, as a result of the hearing, she is dismissed, you need to advise her to file a complaint with the CCMA arguing that the dismissal was substantively unfair! 

Answer Accepted

This answer was accepted on 24-02-2021 14:19:03

If you would like to view the entire answer, you will need to either login or register a FREE account.

Disclaimer

DISCLAIMER: Advice or answers from Lawyers on SA Legal Advice are not substitutes for the proper advice of an Lawyer. SA Legal Advice is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Lawyer who assists with your question is not your Lawyer, and the response above is not to be considered to be legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains. The responses above are from individual Lawyers, not SA Legal Advice. The site and services are provided “as is”. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service.