The principle of audi alteram partem (“listen to the other side”) must always be observed when a decision to dismiss an employee is being considered.
Strictly speaking, no employee may be dismissed without a hearing being held first. This principle is a cornerstone of our labour law.
Over the years, this tenet has been reinforced by both the courts and arbitrators. In the words of judge De Klerk in CAN (Pty) Ltd vs CCAWUSA and Another (1991):
“Nobody may condemn another without having listened to the accused and without having given him an opportunity to defend himself.”
The dilemma that most employers face is what to do when an employee refuses or simply fails to turn up for a hearing.
Faced with such a scenario, some employers simply write a letter dismissing the employee without conducting a hearing. Others simply do nothing in the hope that the employee will not come back.
The danger with both these approaches is that after months or even years of absence, the employee can suddenly reappear at your doorstep one day and claims their job back.
You will be faced with situation where you may have to reinstate the employee and start the disciplinary process afresh.
In law, the employer is entitled to proceed with a hearing in absentia (in the absence of the employee) if an employee refuses or fails to attend or participate in the hearing without good cause.
In the case of Old Mutual Life Assurance Company South Africa Limited vs Gumbi (2006), an employee gave unconvincing medical reasons for failing to attend a hearing and requested a postponement.
The employer rejected those reasons and went on to hold a hearing in the employee’s absence, leading to dismissal. The dismissal was upheld by the court.
While the fundamental legal principle is that the employee has a right to a hearing, he or she can also waive that right expressly or by conduct. In other words, the employee abdicates his or her right to be present.
When that happens, the employer can proceed in absentia. Employers must also bear in mind that refusal or failure by the employee to attend a hearing is not an offence in itself.
Unless your disciplinary code or company rules say so, you cannot compel an employee to attend a hearing.
However, the corollary is that the hearing will be held in their absence, to the possible detriment of their interests.
In Reckitt & Colman vs CWIU and Others (1991), the court ruled that under normal circumstances, an employee would have to attend a disciplinary hearing and “if he refuses to do so, he could hardly allege that the proceedings and the outcome of the proceedings were unfair or amounted to an unfair labour practice”.
How should the employer handle the issue of non-attendance by the employee at a hearing? As already noted, the employer cannot simply dismiss an employee without holding a hearing simply because the employee has failed or refused to attend.
The employer may proceed in absentia, but making sure that the hearing is conducted as fairly as the circumstances allow and bearing in mind that the accused employee is not present to give their side of the story.
If an employee refuses or fails to attend a hearing, the safer course would be to postpone the hearing.
Even if there is no reason for non-attendance, it is advisable to postponed the hearing at least once.
The employee should then be informed of the postponement and that the hearing will be conducted in their absence if they don’t attend the second time.
Another option would be to proceed with the hearing in absentia immediately the employee fails to attend, but send the relevant documents to the employee for his or her comment before a decision is made.
If no comment is forthcoming from the employee, the employer can then go ahead to make a determination.
Where an employee requests a postponement because it is difficult for them to attend or because they want to adequately prepare their defence, or that a particular representative is unavailable, or any other plausible reasons, prudence requires that the employer grants such requests.
Where the employee’s representative fails to attend, the intervention of the workers’ committee or relevant trade union may be sought to secure his attendance.
If that fails, the employee should be allowed to choose and brief another representative and the hearing should be postponed.
Refusal or failure to attend a hearing must be distinguished from the situation where the employee or his representative are simply late.
Customarily, a leeway of up to 30 minutes is allowed before the start of proceedings. Employers must not respond in a knee-jerk fashion and rush to convene a hearing in absentia only to realise later that the employee had failed to turn up on time for a valid reason.
Employees always feel strongly about why they cannot attend hearings. They may believe that the presiding officer will be biased or that the offence in question occurred outside company time or a myriad other reasons.
However, it would be foolhardy not to attend because even if they don’t, they can be dismissed on the basis of evidence available. What would one lose by attending the hearing and putting forward their arguments?