Recently, there seem to be an increase in employees that refuses to attend their own disciplinary hearings and even leave the hearing half-way by staging a ‘walk-out’. The reason behind this phenomenon remains a mystery, but hardly surprising, considering the number of walkouts we notice in our political spheres. The question is - How do we effectively deal with such situations?
In some cases, employees have a bona fide reason for not attending their hearing. The benefit of the doubt should always reside with the employee. However, for some employees it is merely a method to delay the process. It could be argued that for employees that are on paid suspension it is in their best interest to delay the process (on the condition that they are in fact found ‘guilty’). On the other hand, a postponement can be used merely to frustrate the process.
Fortunately, Rule 23 of the Rules of the Conduct of Proceedings before the CCMA (Commission for Conciliation, Mediation and Arbitration) provide a general guideline on how to approach this phenomenon at CCMA cases, which ought to be used in internal disciplinary hearings.
At the CCMA, an arbitration may be postponed if both parties agree in writing, or if such application is made to the Commissioner (on notice to the other parties), at least seven (7) days prior to the scheduled date of the arbitration. In addition, the Commissioner may also postpone an arbitration after considering any application, with or without a hearing.
In considering what the courts have said, we consider the case of Free State Gambling and Liquor Authority v Motane NO and Others (LC) (unreported case no JR1130/16, J23/15, 10-3-2017), where the court held that (ad para 16):
a. “postponements at arbitration hearings are not to be readily granted.
b. postponements in arbitrations should be granted on a “less generous basis”. This approach is informed by the recognition that the [Labour Relations Act 66 of 1995] LRA requires that labour disputes need to be resolved expeditiously and thus arbitrators have a wide discretion in granting or refusing to grant a postponement.
c. where fundamental fairness and justice justifies a postponement, the arbitrator may in appropriate cases, allow such an application even if it was not timeously made.
d. the Labour Court sitting in review will adopt a stringent and restricted approach to interfering with the refusal to grant postponements by arbitrators.
e. it is only when a compelling case has been made for interfering with the exercise of the discretion of the arbitrator, will the court interfere with the refusal to grant a postponement. This can be in instances where the arbitrator was influenced by wrong principles or misdirection on the facts, or where the decision reached could not reasonably have been made by an arbitrator properly directing him/herself to all the relevant facts and principles.”
But what about postponements of internal disciplinary hearings?
If this process is extrapolated to also fit internal disciplinary hearings, it could be reasoned that a disciplinary hearing may be postponed if both parties agree to it, or if the accused employee apply for postponement within a reasonable period before the hearing and with valid reasons. However, in cases where no such application was made, the employee’s party could still apply for postponement during the hearing, and a reasonable chairperson should consider the validity and reasonableness of such application. The emphasis is on the fact that the employee must be present for the application for postponement.
Usually, the above procedure for postponement should be contained in the disciplinary policy of the employer. Where no such procedure is outlined in the disciplinary policy of the employer, a decision to grant or refuse an application for a postponement of a disciplinary hearing should be made by a chairperson. In making a decision, a chairperson should be guided by the following:
a. Whether any exceptional circumstances exist to allow the postponement.
b. Whether good cause has been shown by the applicant party (employee or employer) in the application for postponement.
c. Whether the employee has been afforded an adequate time to prepare for the hearing.
d. Whether there have been any previous delays or requests for postponement.
Interestingly, merely claiming illness, and supplying a medical certificate might not be enough to justify being absent from a disciplinary hearing. In Old Mutual Life Assurance Co SA Ltd v Gumbi  4 All SA 866 (SCA), (para 19 and 21) the court held that the mere production of the medical certificate was not, in the circumstances of that particular case, sufficient to justify the employee’s absence from the hearing. The certificate did not specifically state that the employee was incapable of attending the hearing at all and therefore the chairman was entitled to require him to be present at the hearing so as to determine the employee’s capacity to participate in the proceedings. Considering this, it seems that the courts position in these matters are that even if there might be a bona fide reason for an employee not to continue with the hearing on a specific date/time, they still need to be present at the hearing in order for the chairperson to make a decision for postponement.
Furthermore, chairpersons of disciplinary hearings may be lenient with applications for a first postponement, on the condition that neither party suffer prejudice. However, in the event where such applications are made deliberately with the intention to (directly or indirectly) delay and/or frustrate the proceedings, then a chairperson should adopt a rigid and strict approach in those circumstances. Therefore, it is recommended that employers should develop and incorporate in their disciplinary policies, a clear procedure regarding postponement of disciplinary hearings. This procedure will prevent unreasonable delays of the disciplinary hearing process and curtail costs associated with the process itself.
In further considering the case of Old Mutual Life Asurance Co SA Ltd v Gumbi (as above), the case also refers to a number of other cases which is also significant. It refers to the case of Slagment (Pty) Ltd v Building, Construction and Allied Workers’ Union and Others 1995 (1) SA 742 (A) where the court stated:
“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.”
Furthermore, it also refers to the case of Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & Others (1991) 12 ILJ 806 (LAC) at 813C-D, which stated that the right to a pre-dismissal hearing imposes upon employers nothing more than the obligation to afford employees the opportunity of being heard before employment is terminated by means of a dismissal. Should the employee fail to take the opportunity offered, in a case where he or she ought to have, the employer’s decision to dismiss cannot be challenged on the basis of procedural unfairness.
In summary, the courts seem to have a specific position towards employees not attending their disciplinary hearings. For the most part, the employer has an obligation to provide the employee a fair opportunity to present their side (audi alteram partem). However, should the employee deliberately and willingly not make use of this opportunity, the chairperson may continue the disciplinary hearing in their absence. However, an employee may apply for postponement, with valid reasons for the postponement, prior to the disciplinary hearing. In cases where no such application was received, the employee should at least attend the hearing, and make the submissions for postponement before the chairperson. The chairperson would then evaluate and make a decision on whether or not to postpone the hearing. Only in certain circumstances, where the actual presence of the employee is not feasible, would postponement be considered in the absence of the employee. When a disciplinary hearing continues in absentia, due to the employee’s deliberate and intentional failure to attend the hearing, the employee effectively waived his right to challenge a dismissal based on procedure. Therefore, it for the sake of procedural fairness, remains crucial that employees attend to their own disciplinary hearings whenever possible.