Labor Laws Gone Nuts!!

Post by **jones jones** » Fri Sep 30, 2011 11:26 am

Okay, I haven't lived in the U.S. for some time so I have no idea on the rights of the workers there. But here in the RSA, a buddy of mine employs this guy who has been working as a part-time weekend barman. He's pulling down like $600.00 a month and he has a wife and a baby in arms.

My friend who frequents this pub feels sorry for the guy and says he will give him a job during December last. He signs no contract of employment but tells the guy he will give him a job for a month as a laborer at $1000.00 a week.

So soon after he starts, this guy gets booked off work for a week with brochiatis. The lady who owns the pub where this dude used to work calls my buddy and says that this guy is sitting in her pub every day drinking. Then another employee tells my mate that this sick dude called him and asked where he can buy some marijuana.

So when this guy comes back to work my buddy gives him one week's pay and fires his sorry ass. A few weeks later he gets a letter from the CCMA ... the Commission for Conciliation Mediation & Arbitration. He has to appear before them cos this guy is saying he has been unfairly dismissed.

The upshot of it all is that my buddy appears before the Commission and tells then exactly why he fired him. We sympathise with you, they say, but he was unfairly dismissed. He is ordered to pay this ******* $5000.00 in compensation.

And unemployment continues to rise. I wonder why?

Bruv · Post by **Bruv** » Sat Oct 01, 2011 10:27 am

Much the same in the UK.

But looking from the sacked blokes point of view, the decision was correct.

How can you sack a guy for his private life style ?

gmc · Post by **gmc** » Sat Oct 01, 2011 11:57 am

No it's not the same in the UK. In the UK he has taken him on without giving him an employment contract which means he is not paying national insurance or PAYE. It's called employment fraud. A paid labourer cash in hand on a casual basis is a whole different ball game, if self employed basis it's up to the individual to sort out his own tax but there would need to be an invoice for the job. The "employee" would not be able to go to a tribunal.

Post by **jones jones** » Sat Oct 01, 2011 2:02 pm

No he wasn't a 'casual laborer' at all. Casual laborers fall under a totally separate set of rules. They are only allowed to work a certain number of hours a week & no paye or any other deductions are made from their wages. This guy was in full time employment and paye and unemployment insurance was deducted from his wages.

He wasn't sacked because of his personal habits ... he was sacked because he was booked off sick for a week and spent that week on the **** and smoking weed. Is that a good thing for brochiatis?

Bruv · Post by **Bruv** » Sat Oct 01, 2011 2:11 pm

jones jones;1371488 wrote:

He wasn't sacked because of his personal habits ... he was sacked because he was booked off sick for a week and spent that week on the **** and smoking weed. Is that a good thing for brochiatis?
The lady who owns the pub where this dude used to work calls my buddy and says that this guy is sitting in her pub every day drinking. Then another employee tells my mate that this sick dude called him and asked where he can buy some marijuana.

All gossip tittle tattle

Post by **jones jones** » Sat Oct 01, 2011 2:14 pm

I've no problem with workers having rights ... but should they have more rights than the people who employ them and pay them a fair wage?

Bruv · Post by **Bruv** » Sat Oct 01, 2011 2:37 pm

jones jones;1371491 wrote: I've no problem with workers having rights ... but should they have more rights than the people who employ them and pay them a fair wage?
The way you told the story, I am behind the sacked worker.

Someone tells the employer his employee who just happens to be off sick is enjoying a beer, another tells him he is asking around for some blow.

Nothing to stop someone off sick having a beer, or taking a smoke.

Presumably the guy had a doctors note for his absence ?

In the UK there are procedures that have to be adhered to, depending on length of service, warnings have to be issued spoken and written. Under a a certain amount of time, being unsuitable for the job is enough to dismiss.

But I am sure rumours that the guy was drinking beer and sourcing a bit of blow in his own time don't count as sackable offenses......even in your world.

-kg- · Post by **-kg-** » Sat Oct 01, 2011 11:25 pm

Bruv;1371493 wrote: Under a a certain amount of time, being unsuitable for the job is enough to dismiss.

But I am sure rumours that the guy was drinking beer and sourcing a bit of blow in his own time don't count as sackable offenses......even in your world.

It is true that in this country, under a certain amount of time, a person can be released for whatever reason. That is called a probationary period and is usually 90 days.

While having a beer may not be a "sackable offense" in this country, "the smoke" definitely is. This country does not tolerate that. The business man in question, if in this country, would have been able to release him under the "90 Day probationary" rules, but if the worker were over that period, then he took an incorrect action. You can't release someone because of a rumor.

The proper procedure here would be to require the worker to take a drug test. If he failed that, the employer would have to take the appropriate follow-up actions according to the rules of employment. That's if he was over the probationary period.

I'm not sure exactly what those rules are in regard to drug use, but I can assure you they're quite strict. Depending on state and local laws, being fired might be the least of his worries.

Just a little additional information:

We have some states here in which marijuana is allowed for medicinal purposes (the Feds definitely do not!). A while back, there was a big brouhaha here where Walmart would fire someone who used it, even though they had a legitimate need and were allowed to do it in that state. Lawsuits flew, and I'm not sure what ever became of it.

This is the latest I could find:

http://articles.nydailynews.com/2010-07 ... aclu-fires

Bruv · Post by **Bruv** » Sun Oct 02, 2011 2:27 am

I cannot believe that rumour of sourcing an illegal substance is a sackable offence anywhere that has a rudimentary justice system.

gmc · Post by **gmc** » Sun Oct 02, 2011 9:58 am

jones jones;1371488 wrote: No he wasn't a 'casual laborer' at all. Casual laborers fall under a totally separate set of rules. They are only allowed to work a certain number of hours a week & no paye or any other deductions are made from their wages. This guy was in full time employment and paye and unemployment insurance was deducted from his wages.

He wasn't sacked because of his personal habits ... he was sacked because he was booked off sick for a week and spent that week on the **** and smoking weed. Is that a good thing for brochiatis?

You can't have it both ways

He signs no contract of employment but tells the guy he will give him a job for a month as a laborer at $1000.00 a week.

He is either a full time employee with a contract of employment or a casual labourer. Giving him a job for a month with no contract of employment rather suggests casual work. I don't see how the employee has a case.

-kg- · Post by **-kg-** » Sun Oct 02, 2011 3:05 pm

Bruv;1371512 wrote: I cannot believe that rumour of sourcing an illegal substance is a sackable offence anywhere that has a rudimentary justice system.

Rumor isn't; that's why they have the drug tests. They can administer one on reasonable suspicion. Whether a rumor is "reasonable suspicion," I don't know, but if it isn't, an employer will find one.

gmc wrote: He is either a full time employee with a contract of employment or a casual labourer. Giving him a job for a month with no contract of employment rather suggests casual work. I don't see how the employee has a case.

Apparently the Commission for Conciliation Mediation & Arbitration thought he did. I don't think he did, either. No contract for employment speaks of, as you say, casual employment. I'd be interested to hear what the Commission based their decision on, but I'm betting we'll never know.

Bruv · Post by **Bruv** » Mon Oct 03, 2011 4:03 am

Who am I talking to here ?

The sacking was in South Africa I believe...............why are you quoting American employment as an example?

Basically a guy employs a part time barman, and when he doesn't behave as he thinks he should he sacks him on the basis of rumours.

fuzzywuzzy · Post by **fuzzywuzzy** » Mon Oct 03, 2011 4:22 am

Christ no one in this town would have any employment if things were based on rumours. lol lol lol

-kg- · Post by **-kg-** » Mon Oct 03, 2011 3:13 pm

Bruv;1371558 wrote: Who am I talking to here ?

The sacking was in South Africa I believe...............why are you quoting American employment as an example?

Basically, because you said:

Bruv wrote: I cannot believe that rumour of sourcing an illegal substance is a sackable offence anywhere that has a rudimentary justice system.

That is what I quoted, and what I was answering. I do believe the U.S. has at least a "rudimentary justice system," though some may dispute that. I assumed the above was a response to my previous post, in which I answered yet a previous post of yours:

Bruv wrote: Under a a certain amount of time, being unsuitable for the job is enough to dismiss.

But I am sure rumours that the guy was drinking beer and sourcing a bit of blow in his own time don't count as sackable offenses......even in your world.

You said, "in my world," so in respect to an ongoing discussion, I felt I was answering appropriately. My apologies if I wasn't.

Bruv · Post by **Bruv** » Mon Oct 03, 2011 3:18 pm

My opening quote trumps all others.

-kg- · Post by **-kg-** » Mon Oct 03, 2011 4:29 pm

My apologies, then.

Bruv · Post by **Bruv** » Tue Oct 04, 2011 4:22 am

-kg-;1371614 wrote: My apologies, then.

I am sorry but the thread has lost it's purpose somewhere along the line.

The employee was I suspect a labourer took on as a charitable act by a concerned onlooker who found him serving in a bar.

The employer's feelings appear to have over ruled his common sense, employing to start with and then, when the employee's behaviour didn't match his expectations he summarily sacked him on a whim, same as he employed him.

Neither party has my full sympathy, but if push comes to shove the employee has the edge.

-kg- · Post by **-kg-** » Tue Oct 04, 2011 8:18 am

Bruv;1371638 wrote: I am sorry but the thread has lost it's purpose somewhere along the line.

The employee was I suspect a labourer took on as a charitable act by a concerned onlooker who found him serving in a bar.

The employer's feelings appear to have over ruled his common sense, employing to start with and then, when the employee's behaviour didn't match his expectations he summarily sacked him on a whim, same as he employed him.

Neither party has my full sympathy, but if push comes to shove the employee has the edge.

Not a problem, my friend. I've been a long time user of BB Forums and know what it is to lose the intended path of a thread. Everyone is different, and some read an "intended path" into it that is different from that of the OP.

I think both parties took actions with little thought of the ramifications of those actions, and given free reign in my personal judgement, I too would side more with the employee. I wouldn't be quite so harsh with the employer, though. I don't think it was so much a whim as an overreaction to the rumors he heard. None of us know what truly went on; these rumors may not even have been true and were generated by other employees with an agenda.

When one is in business, it is incumbent upon that person to know his business and what actions he can or cannot/must or must not take in regard to everything concerned with that business. Such a person can not afford to be reactive; the person must be proactive and take the correct steps, legal or otherwise.

Again, I believe that a person's personal business is his or her own. My personal business should not find its way into my workplace unless my work is affected by it (and my employer had better be able to prove it!). Such is rarely the case in the real world, but that is my attitude.

I'll add to my sympathy towards the employee; a "firing" on one's employment record has negative connotations in application for further employment. That the Commission found that firing to be improper is at least a mitigation to that. Fat lot of good that will do him when future prospective employers call that employer for a reference.

That said employer was reactive to the rumors is undeniable. If he had been proactive and taken the correct steps, we never would have heard about it. Of course, as you said, if the employer's feelings hadn't overridden his common sense in the first place, we wouldn't have, either. Nice of him to be sympathetic with the guy, but he ended up doing him no favor.

gmc · Post by **gmc** » Tue Oct 04, 2011 8:49 am

In the UK he would have no right to go to a tribunal at all especially after such a short period as a month. You don't have to give a reason except sorry, this is not working out. White collar jobs usually have a probation period within which they can be dismissed, the employer doesn't have to prove anything except they found the work unsatisfactory.

posted by KG

Rumor isn't; that's why they have the drug tests. They can administer one on reasonable suspicion. Whether a rumor is "reasonable suspicion," I don't know, but if it isn't, an employer will find one.

You're kidding aren't you? In the UK an employer can't just decide to drug test employees unless it is already part of the employment terms and conditions.

I once suspended someone and they were subsequently sacked for being drunk - since he was the fork lift driver the other staff were right behind me and falling down and reeking off the stuff was a dead give away. As it turned out previous managers had been too frightened of him to take action