The principle of audi alteram partem (“to hear 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. This principle is a cornerstone of our labour law.
The dilemma that most employers face is what to do when an employee refuses or simply fails to turn up for a hearing. According to South Africa’s labour 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. A waiver in law occurs when a person, with full knowledge of a legal right, abandons it. This principle applies where an employee either chooses not to attend a disciplinary hearing, or in such a disciplinary hearing refuses to participate and state his case.
In Mphepya v The South African Weather Service (2010), the employee was dismissed in absentia on charges of gross negligence, dereliction of duties, and breaching procurement policies. The employee had declined to attend his disciplinary hearing because he believed he would be unfairly treated, yet he had presented no evidence or basis for this claim. The chairperson and initiator were both external parties appointed to ensure fairness as the employee was very senior. The commissioner found that the employee had waived his right to be heard by walking out of the hearing. Postponement would have been futile as there was no way of knowing if the employee would ever agree to attend the hearing to state his case. In these circumstances it was found that the employer was entitled to decide the matter without hearing the employee’s side, and there was no procedural unfairness.
It is important to note some key points when continuing in an accused’s absence:
- Did the accused receive the notice to attend the disciplinary inquiry?
- How did the accused receive the notice to attend, and could we reasonably assume that the accused received the notice to attend? For example, if the accused was handed the notice to attend in person and either he signed, or a witness signed on their behalf, then it is safe to assume that the accused was aware of the date and time of the disciplinary inquiry.
- Should the accused fail to arrive at the disciplinary inquiry, it is important to attempt to call the accused telephonically. Should you be unable to contact the accused telephonically then this must be noted in the minutes of the disciplinary hearing together with any other attempts to contact the accused, and details of how the accused had been notified of the disciplinary hearing. If the accused answers and can attend but is running late for example, then you should wait if it is reasonable to do so, if not then the matter should be postponed, and an alternate date and time should be supplied to the accused.
- Once one can prove that the accused has been notified of the disciplinary hearing and has failed to attend, one can proceed with the hearing in the absence of the accused.
- The company must ensure that the accused is notified of the outcome of the hearing.
It is important to confirm that an employee’s absence from a hearing is due to the employee’s choice, and not due to circumstances out of the employee’s control. If the accused is able to offer a reasonable excuse for their absence, they may appeal the outcome of the hearing. Contact your legal adviser for more specific and detailed advice on this matter.
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