Fairness of Dismissal in Absence
Legal Consequences of Non-Attendance at Disciplinary Hearings
In South African labour law, the right to a fair dismissal is a cornerstone of employee protection. The Labour Relations Act 66 of 1995 (LRA) explicitly requires that both substantive and procedural fairness be met when an employee is dismissed. Procedural fairness includes the employee’s right to attend and participate in disciplinary hearings, and non-attendance at such hearings raises important questions about the fairness of dismissal in absence.
This article explores the legal ramifications of an employee’s failure to attend a disciplinary hearing and the employer’s obligations to ensure fairness. It examines the governing legislation, the procedural safeguards for employees, and the implications for substantive fairness. Special attention is given to the key phrase “fairness of dismissal in absence” and how it affects legal determinations.
The Legal Framework for Disciplinary Hearings and dismissal of employees in absence
The LRA establishes that every employee has the right not to be unfairly dismissed (s 185). For a dismissal to be deemed fair, both substantive and procedural fairness must be established (s 188). Procedural fairness is particularly relevant in disciplinary hearings, where the employer must ensure that the employee is given a fair opportunity to respond to allegations of misconduct or poor performance.
The Code of Good Practice: Dismissal, found in Schedule 8 of the LRA, provides detailed guidelines for employers on conducting fair disciplinary processes. It emphasizes the need for the employee to be informed of the charges against them and to be given a reasonable opportunity to prepare and present their defense.
A critical element of procedural fairness is the right of the employee to attend the hearing. Should the employee fail to attend, the employer faces a difficult decision on whether to proceed in their absence. The courts have consistently held that an employer can proceed with a disciplinary hearing in the employee’s absence, provided that reasonable efforts were made to ensure the employee’s attendance (see Country Fair Foods (Pty) Ltd v CCMA and Others [1999] 11 BLLR 1117 (LAC)).
Fairness of Dismissal in Absence: What Constitutes Reasonable Efforts to Notify the Employee?
The courts have outlined what constitutes reasonable efforts by the employer to notify an employee of a disciplinary hearing. In Boss Logistics v Phopi and Others [2010] 7 BLLR 689 (LC), the Labour Court held that the employer must prove that it took reasonable steps to inform the employee of the time and date of the hearing. This includes providing notice in writing, allowing a reasonable amount of time for the employee to prepare, and ensuring that the employee understands the consequences of non-attendance.
The ruling in Phopi emphasized that while employers are not expected to take extreme measures, they must make a genuine effort to communicate with the employee. Failure to do so would render the dismissal procedurally unfair. Furthermore, if the employee provides a valid reason for non-attendance, such as illness or unavoidable circumstances, the employer may be required to postpone the hearing (Majola v Dhladhla Personnel Consultants CC [2005] 3 BLLR 291 (LC)).
Proceeding with a Disciplinary Hearing in the Employee’s Absence
If an employee does not attend a disciplinary hearing without a valid reason, the employer is generally entitled to proceed in their absence, provided that procedural fairness is maintained. The decision to proceed in absentia must not be taken lightly, as it may have serious consequences for the fairness of the dismissal.
In Maharaj v Mandag Centre of Investigative Journalism NPC [2019] 11 BLLR 1157 (CCMA), the CCMA reiterated that proceeding in an employee’s absence could be justified where it is clear that the employee deliberately avoided attending the hearing. However, the employer must document all efforts made to inform the employee of the hearing. If the employer fails to meet these obligations, the dismissal could be overturned as procedurally unfair.
The Code of Good Practice also provides that where an employee fails to attend a hearing, the employer should consider whether an alternative method, such as written submissions, could allow the employee to present their case (Altendorf v John Vorster House Pty Ltd [2003] 10 BLLR 987 (LC)). This ensures that the employee is not unfairly prejudiced by their absence.
The Test for Procedural Fairness of dismissal in Absence of the Employee
When determining the procedural fairness of a dismissal in the employee’s absence, the courts apply the following test, as established in Toyota SA Motors (Pty) Ltd v Radebe and Others [2000] 3 BLLR 243 (LAC):
Was the employee given sufficient notice of the hearing?
Did the employee have a reasonable opportunity to attend?
Did the employer make genuine efforts to ensure the employee’s attendance?
Was the employee informed of the consequences of non-attendance?
Was the hearing conducted in a fair and unbiased manner despite the employee’s absence?
The Labour Court has held that failure to meet any of these requirements could result in a finding of procedural unfairness. In De Beers Consolidated Mines Ltd v CCMA and Others [2000] 9 BLLR 995 (LAC), the court stressed that procedural fairness requires more than mere formality. The employer must demonstrate that the employee was afforded a real and meaningful opportunity to be heard.
Substantive Fairness and the Impact of Non-Attendance
Substantive fairness focuses on the reason for dismissal. The LRA requires that the dismissal must be for a fair reason related to the employee’s conduct, capacity, or the operational requirements of the employer (s 188(1)(a)). When an employee does not attend their disciplinary hearing, they lose the opportunity to present mitigating factors or challenge the evidence against them.
In the case of South African Breweries (Pty) Ltd v CCMA and Others [2014] 35 ILJ 943 (LAC), the court emphasized that even if a hearing is procedurally fair, the substantive fairness of the dismissal must still be assessed. The absence of the employee may strengthen the employer’s case, particularly if the evidence is uncontested. However, the employer must still ensure that the dismissal is substantively fair and proportionate to the misconduct.
If an employee is dismissed in their absence, they may seek recourse through the CCMA or a bargaining council. The employee can argue that the dismissal was substantively unfair if they can demonstrate that the employer did not have sufficient grounds for the dismissal, even though the hearing was procedurally fair (SACCAWU v Woolworths (Pty) Ltd [2019] 40 ILJ 535 (LAC)).
Employee’s Right to Appeal or Challenge the Dismissal if they were absent.
An employee who is dismissed in their absence is not without legal recourse. Section 191 of the LRA provides for the right to refer a dismissal dispute to the CCMA or a bargaining council. If the employee can show that the employer failed to follow fair procedures or that the dismissal was substantively unfair, they may be entitled to remedies such as reinstatement or compensation.
In NUM v Amcoal Colliery and Industrial Operations Ltd [1992] 13 ILJ 1449 (LAC), the Labour Appeal Court held that reinstatement is the primary remedy for unfair dismissal, particularly where procedural unfairness is established. Compensation is an alternative remedy where reinstatement is not feasible.
Furthermore, the employee may seek to have the dismissal reviewed by the Labour Court if it is alleged that the employer acted in bad faith or failed to conduct the hearing in a fair manner (Carephone (Pty) Ltd v Marcus NO and Others [1998] 11 BLLR 1093 (LAC)).
Conclusion: The Importance of Fairness of Dismissal in Absence
The concept of fairness of dismissal in absence is a critical issue in South African labour law. Employers must ensure that all reasonable steps are taken to inform the employee of the disciplinary hearing and to provide them with an opportunity to present their case. Failure to do so can render the dismissal procedurally unfair, regardless of the employee’s conduct.
On the other hand, employees must understand that non-attendance at a disciplinary hearing can significantly weaken their position. While they retain the right to challenge the dismissal, their absence may result in the employer’s evidence being uncontested, thus affecting the overall fairness of the dismissal.
The courts have consistently emphasized that procedural fairness is not a mere formality but a vital component of the disciplinary process. Both employers and employees should take care to ensure that hearings are conducted in a manner that upholds the principles of fairness and justice. The test for fairness of dismissal in absence must be rigorously applied to protect the rights of employees while allowing employers to maintain discipline in the workplace.
In summary, while the law permits employers to proceed with disciplinary hearings in an employee’s absence, this must be done cautiously and in full compliance with the requirements of procedural fairness. A failure to meet these standards could result in a dismissal being overturned, leading to costly legal battles and potential remedies such as reinstatement or compensation.
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E&OE).
