19weeks 4days pregnant and about to lose my job!

Hi

I am in Human resources, so can give you some pointers on the matter.

Firstly there are two seperate processes that an employer needs to follow, depending on the situation .

the first process is for misconduct. this is when a rule is broken and relates to conduct in the work place, the employer would issue a verbal, then written and then final written warning for misconduct, the aim is to get the employee to rectify said behaviour. You dont always have to follow the route of VW then WW and then FWW, it depends on the severity of misconduct, ie theft could result in immediate dismissal for a first offence.

the second process relates to performance,
the process for performance management does not involve issuing warnings, the employer needs to sit with you and hold an initial counselling session, during which he advises you of the required level of performance and where you are not meeting standards, he would need to discuss a plan with you for improving performance, ie what can you do to improve sales and how can the company can assist you ( ie training , etc) there would also be specific review periods discussed and time frames by when you would need to improve your sales (there would be specific dates and targets disussed)

This initiall counselling session needs to be documented and signed by both parties.

Your employer would then meet with you on a regular basis (ie every second week or every month ) to discuss if your performance has improved, where ou ahve met target and where performance can still be improved.

During this performance management process you would not be issued with warnings, but rather all discussions documented, if at the end of say 2 - 3 months performance did not improve then they would hold a disciplinary hearing for poor performance and you may be dismissed.

The company needs to prove they made you aware of the standards they required and tried to assist you in rectifying your performance and that they then gave you a reasonalbe amount of time to rectify behaviour.

From what you have sad, it sounds like you didnt break any rules, but rather just didnt meet your sales target and that they should have followed a performance management process.

If they do dismiss you, your employer would need to prove two things to the CCMA

1. Procedural fairness - did they follow the correct procedure
2 Substantive fairness- did the punishement fit the offence ( in other words did your behaviour warrent dismissal)

The CCMA will often side with the employee based on procedural fairness.

You can win up to one years salary from your employer or reinstatement. the CCMA would ask you what you want when you fill in the forms to raise a dispute ( they often order the eployer to pay out a settlement if the relationship has become intolerable)

most cases I have handled the CMMA awards around 3 months salary as settlement to employees.

Hope this helps

Good luck

I am sorry to hear you are going through a horrible time. You have indicated that your position is sales/performance related, and this would usually be the case when it is commission linked. You have also mentioned your employer has moved through a dismissal process with you ie. warnings, through to a final warning, so they have appeared to follow the process. If you feel that the details aroind your performance on your contract were not clear i.e.your targets, you need to raise the issue in writing with your employer now.

However if you employer has already raised this issue with you i.e. performance related to targets/sales, and my guess is this was raised in the first verbal warning meeting, are you able to improve/amend your performance to meet the target?

Unfortunately sales people's performance are assessed by the sales. If a sales person is not making the figures, and your employer can prove you had the support, the training, the guidance and still did not write the sales, they will have a good case to defend the reason for letting you go.

If your defense is you did not know about the targets, odds are they will prove this has been discussed with you subsequent to the contract.

The contract of employment is not always the Holy Grail. Subsequent documentation will also come in to play.

My guess - and I may be mistaken - is a sales position is target linked. Whether it is in the contract or not, that is how performance is measured.

I hope you are able to meet with your employer and discuss to find a solution to going forward. Employers usually do not want to lose employees, and often a frank discussion outside a disciplinary hearing can go a long way to resolving issues of he-said-she-said.

Good luck, I hope that after a meeting with your employer you reach some clarity, to reduce the stress.

well then i think it will be a unfair dismissal. The CCMA will advise you if you havent got a chance!

And the CCMA will be on your side!

:e has given me 2 written warnings and a final warning, wich I thought was fine cause I thought that the contact said it was target so my husband had a good look at the contract and the contract does not state anywhere that I had to reach a certain amount of sales per month it only states that if I reach an amount of sales higher that x ammount then the commission will go up from 3 to 4%!

So I am so stressed and unhappy here where I am at the moment, this is so not good for the baby, since the start of this year when everything started I can feel the difference in the patterns in wich he moves is so much more and more intense than when I wasn't stressed out as much!

Thank you all for you're advice!

I am just affraid of going to the ccma cause I don't want to take them on and said sorry we can't help you you're boss wins and be humiliated any futher!

Your boss cannot just fire you,

You need
1x verbal warning
2x written warnings
1xservre written warning
after that a notice to attend a disiplinary hearing, In which you should have about a week to prepare for and get your own witnesses, lawyer etc... and then a disiplinary hearing.

Have you signed any of these warning letters they are talking about?

as i run my own business, trust me i know it not as simple as just firing anyone anymore!

The CCMA is on your side all the way!

I had a look at the labour relations act and when you refer the matter to the CCMA, the onus of proof would be on your boss to produce the documents...

"
188. Other unfair dismissals
(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove-

(a) that the reason for dismissal is a fair reason-

(i) related to the employee's conduct or capacity; or
(ii) based on the employer's operational requirements; and

(b) that the dismissal was effected in accordance with a fair procedure.

(2) Any person considering whether or not the reason for dismissal is a fair reason or whether or not the
dismissal was effected in accordance with a fair procedure must take into account any relevant code of
good practice issued in terms of this Act.
51"

So he has to prove that you have not been fulfilling your contract and that he has followed the correct procedures in terminating your employment, the CCMA then has the right either to order him to reinstate you (which would make for a bad working environment) or order that he pay you compensation.

and the targets is not mentioned anywhere in the contract, under any clause, sometimes they hide it quite well saying that your employment is subject to certain terms and conditions.

It may well be worth a phone call to the ccma, sometimes they can help you before the actuall dismissal. Have you received written warnings?