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Employers May Be Justified to Hold A Disciplinary Hearing in Employees’ Absence under Certain Circumstances

By Magate Phala, Labour Law Specialist and founding Director of Magate Phala & Associates

 

Item 4 (1) of Schedule 8 (Code of Practice: Dismissal) of the Labour Relations Act, 66 of 1995 as amended, provides that normally the employer should conduct an investigation to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.

 

Very often, a situation arises where employees (accused of misconduct) and after being issued with a notice to attend a formal disciplinary hearing on a specified date and time, then does not avail themselves at the enquiry. Many reasons furnished by the employees in cases like these, range from being medically unfit to attend the disciplinary hearing, not being fully prepared and/or that the representative is not available.

 

Chairpersons of the disciplinary hearings are required to take control and handle these types of situations as preliminary issues and/or preliminary points. Chairpersons may be lenient with applications for first postponement, however, in the event where such applications are made deliberately with an intention (directly or indirectly) to delay and/or frustrate the proceedings, then a chairperson should adopt a rigid and strict approach in those circumstances.

 

Before making a ruling on a point in limine, the chairperson must request a detailed explanation or argument on the point in order to understand such point. The chairperson may ask questions to clarify the points or objections raised. The chairperson must also request the other party to provide a detailed explanation or counter argument in response to the original point raised and thereafter make a ruling on the specific point raised. The chairperson’s ruling is final.

 

In Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union and Others 1995 (1) SA 742 (A), the Supreme Court of Appeal stated the principle in the following terms at 755B-C:

 

‘It is within the province of the employer who holds a disciplinary enquiry to determine its form and the procedure to be adopted, provided always that they must be fair. Fairness requires, inter alia, that the employee should be given an opportunity of meeting the case against him: the employer must obey the injunction audi alteram partem.’

 

In Old Mutual v Gumbi [2007] SCA 52 (RSA), the SCA held as follows;

 

At paragraph 19………………A mere production of the medical certificate was not, in the circumstances of this case, sufficient to justify the employee’s absence from the hearing. As the certificate did not allege that he was incapable of attending at all, the chairman was entitled to require him to be present at the resumed hearing so as to himself enquire into his capacity to participate in the proceedings. These facts play a major role in determining unfairness when the interests of both parties are taken into account”.

 

At paragraph 21………………… “When all these facts are viewed objectively, it cannot be said that Old Mutual has acted procedurally unfairly in continuing with the hearing in the employee’s absence and dismissing him for the misconduct of which he was found guilty. The employee and his representative are the only persons to blame for his absence”.

 

In Branford v Metrorail Services (Durban) & Others (2003) 24 ILJ 2269 (LAC), where It was held as follows;

 

“The concept of fairness, in this regard, applies to both the employer and the employee. It involves the balancing of competing and sometimes conflicting interests of the employer, on the one hand, and the employee on the other. The weight to be attached to those respective interests depends largely on the overall circumstances of each case”.

 

In Foschini Group v Maidi and Others (2010) 31 ILJ 1787 (LAC) at para 58. the Labour Appeal Court held the following which I respectfully agree with and conclude can be applied directly to the current matter;

 

“It is a trite principle in our law that a party who chooses not to attend a hearing, does so at his or her own peril, and is precluded from later complaining about the outcome of the hearing”.

 

In Mgobhozi v Naidoo NO & others (2006) 27 ILJ 786 (LAC), it was held that medical certificates are no different to other documentary evidence, and therefore constitutes hearsay in the absence of an affidavit from the doctor concerned. It is therefore not sufficient for employees to simply obtain a copy of a medical certificate long after the first day of absence from work, and to merely present it with an expectation that the employer must simply accept it with no questions being asked.

 

In Scott and Another v Poupard and Another 1971 (2) SA 373(A) at 378G-H, Holmes JA held as follows;

 

“In essence it is an equitable doctrine, based on the rule that a party cannot take advantage of his own default, to the loss or injury of another. The principle may be stated thus: Where a party to a contract, in breach of his duty, prevents the fulfilment of a condition upon the happening of which he would become bound in obligation and does so with the intention of frustrating it, the unfulfilled condition will be deemed to have been fulfilled against him”.

 

Therefore, it is recommended that employers should appoint experienced and competent chairpersons of disciplinary hearings with traceable track record in managing and conducting disciplinary matters to preside over their enquiries including complex matters.

 

For more information kindly contact Magate Phala at  or  cell 082 678 8663 or visit www.magatephala.com

 

 

 

 

 

 

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