BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 082 852 2973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
It is an established fact that employees accused of misconduct are entitled to an enquiry before any dismissal decision is made.
Item 4(1) of the Code of Good Practice: Dismissal (the Code) attached to the Labour Relations Act (LRA) states that the employer should inform the employee of the charges, give him/her time to prepare a response, conduct an investigation and allow the employee to state a case in response to the allegations. Countless case law decisions have upheld this requirement.
Item 4(4) of the Code states that, in exceptional cases, where the employer cannot be expected to comply with these requirements, it may dispense with the pre-dismissal procedures. There are very few circumstances where an employer can justify failure to allow the employee a hearing but such a situation could possibly occur where:
- Employees are on an unprocedural strike, there is chaos at the workplace and as a consequence, the employer is unable to communicate with the employees or to get them to attend a hearing
- The employee appears to have absconded and the employer, try as it might, is unable to contact the employee over a protracted period
- The employee refuses to attend the disciplinary hearing waiving his right to be heard
- The employee fails to attend the hearing without an acceptable reason.
Employers are warned that, even if one of the four above scenarios occur, this will not automatically entitle the employer to dismiss the employee without a hearing. The employer will need to obtain advice from a labour law expert who will need to analyse and advise on each individual case with its unique set of circumstances.
This is crucially important because section 188(1)(b) places the onus firmly on the employer to prove that a dismissal was procedurally fair; and the holding of a hearing lies at the heart of procedural fairness. Thus, if the employer fails to prove that the employee was given the opportunity of a fair hearing the employer will most likely lose the case.
On the other hand, the law does not countenance the ploy used by employees where they absent themselves from hearings in order to avoid being disciplined or dismissed. If the employee claims to be unable to attend the hearing he/she is obliged to provide convincing proof of this. For example, in the case of Old Mutual Life Assurance Co. (Pty) Ltd vs Gumbi (2007, 8 BLLR 699) the employer dismissed the employee for misconduct. He took the employer to the High Court on grounds that the disciplinary hearing had taken place in his absence. The Court found that the employee had wilfully excluded himself from the disciplinary hearing and dismissed the case.
The employee took the matter to a higher court, the Transkei Regional Court which reversed the High Court’s decision on the grounds that the employee had a valid reason for his absence from the hearing. That is, he was ill and produced a medical certificate. The employer then took the matter to the Supreme Court of Appeal which found that:
- When the disciplinary hearing had first been convened the employee had proffered a medical certificate. The employer then withdrew the charges and, after the employee had returned to work, issued him with a new hearing notice. However, the employee’s representative raised some spurious reasons for trying to halt the hearing. After a brief adjournment the employee’s representative submitted another doctor’s certificate and made it clear that he and his client would not be attending the hearing.
- The second medical certificate had been offered under questionable circumstances and had little value. The employee had thus used unacceptable means of trying to abort the disciplinary hearing. Had he truly been ill he should have applied in advance for a postponement.
- The employer therefore had the right to proceed with the hearing in the employee’s absence and the dismissal was not unfair.
Employers should not misinterpret this decision. The dismissal was found to be procedurally fair because the proof of the employee’s reason for his failure to attend the disciplinary hearing and the evidence therefor were found to be invalid. This does not mean that employers can now reject illness as a reason for an accused employee’s absence from a disciplinary hearing. It also does not mean that all medical certificates can now be branded as invalid. What the Supreme Court of Appeal’s finding does mean is that:
- Employers are allowed to question the validity of an accused employee’s reason for absence from a hearing
- Careful judgement must be used in deciding whether the employee’s excuse for absence is acceptable or not
- All the circumstances surrounding the employee’s absence must be considered within the bounds of the law that gives employee’s the right to answer to the allegations brought against them.
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