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Disciplinary Hearings in Absentia

In South Africa, there seems to be an increase in the tendency to show defiance towards the powers-that-be.  For right or for wrong, we frequently see this in our day-to-day politics.  Unfortunately, this trend seems to have found its way in the manner in which employees approach a formal disciplinary process.  It is trite that when we see our community leaders stage a ‘walk out' or otherwise refuse to participate in certain proceedings (for whatever reason), their constituents may mimic such behaviour when it comes to internal disciplinary processes.  


Unfortunately, the rules that apply to politicians, rarely apply for employees of a private business.  When an employee refuses to participate in a disciplinary hearing, it could have disastrous results for the employee.  Effectively, the employee waive their right to be heard.

 

Considering Schedule 8(4)(1) of the Code of Practice: Dismissal of the Labour Relations Act, 66 of 1995 as amended, it indicates that if an employee commits misconduct, an employer must conduct an investigation before it can be determined if there are sufficient grounds to terminate an employee’s contract of employment.  Although this investigation does not need to be a strictly formal process, the process must still be deemed procedurally fair. Fairness would imply that the employee has an opportunity to state their case. 

 

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 other words, the employee must be notified of the allegations against them, in a language that the employee can reasonably understand, with reasonable time to prepare themselves.  Furthermore, the employee must be given an opportunity to state their case, lead evidence and witnesses in support of their case.  After the hearing, the employer should communicate the outcome to the employee.  


It is noteworthy that the employer should only give the employee the opportunity to state their case.  Refusal to use this opportunity releases the employer from this responsibility, as long as the opportunity is deemed fair.  The employer should always be able to proof that this opportunity had been given, even if the employee refused to participate. 



The question arises on what should a chairperson do when the employee either refuse to attend the proceedings, or leave the process halfway through.  In such case, it is usually recommended to tread very carefully.  The process must at all times remain fair towards the employee.  Unfortunately for the employee, the knife cuts both ways.  The employer also has a right to be treated fairly, and unnecessary delays would not be fair towards the employer. 

 

REQUESTS FOR POSTPONEMENTS:

An employee may apply for postponement of a disciplinary hearing.  However, such requests are not automatically granted. It must first be considered and evaluated by the chairperson.  The opposing parties should be given an opportunity to make their arguments in support (or against) such postponements.  Most qualified chairpersons would probably show initial leniency and grant such request on the condition that the reasons supplied by the employee is both valid and reasonable.  However, a second and third postponement would require a more substantial reason and would rarely be condoned.  The chairperson will make a decision and his/her ruling on the matter is final.  If the decision is to continue with the hearing, the employee must participate in the hearing.  If they refuse the hearing will commence in their absence. 

 

HEARING IN ABSENTIA:

In a situation where postponement is denied, and the accused employee decide to walk out of an ongoing hearing, or not to attend the hearing at all, the hearing will continue in absentia.  A decision to continue is not taken lightly.  However, if an employee does not have a sufficient reason for their actions, an unbiased chairperson would be obligated to continue with the hearing or risk being biased towards the employer.  In Foschini Group v Maidi and Others (2010) 31 ILJ 1787 (LAC) at para 58. the Labour Appeal Court held the following:  

“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”.

Considering the above, the failure to attend a disciplinary hearing has little to no advantage for a staff member.  Failure to attend a hearing could undermine the employee's attempts to argue their case at the CCMA.  It is therefore strongly advised that employees exercise their right to argue their case and attend to the proceedings.  Should an employee believe that they have been treated unfairly during the hearing, they still have recourse in referring a case to the CCMA.