Ins and outs of disciplinary inquiries

It is important for employees to be aware that an employer does not have a legal duty to conduct a formal disciplinary hearing before dismissing an employee. But an employee has a common law right to be provided with an opportunity to defend himself on the allegations made by the employer. This is consistent with the principle of natural justice that states that both sides of the story must be heard.

It is important for employees to be aware that an employer does not have a legal duty to conduct a formal disciplinary hearing before dismissing an employee. But an employee has a common law right to be provided with an opportunity to defend himself on the allegations made by the employer. This is consistent with the principle of natural justice that states that both sides of the story must be heard.

The form and procedure of that disciplinary inquiry is up to the employer to decide. Most employers have codes that regulate the conduct of employees in the workplace. The codes set out the procedure to be followed by the employer if there is a need to subject the employee to a disciplinary hearing. Where the disciplinary code is not incorporated in the employment contract, the employer is at liberty to determine the form that a disciplinary inquiry will take as long as it is fair.

The disciplinary hearing may proceed in the absence of the employee if no valid reason for the employee's absence exists. In the recent case of Old Mutual Life Assurance Co SA Limited v Thamela Advocate Gumbi (not reported yet) the supreme court of appeal held: "It cannot be said that the employer acted procedurally unfairly in continuing with the hearing in the employee's absence and dismissing her for the misconduct of which she was found guilty."

The facts of this case are briefly that an employee was dismissed subsequent to a disciplinary hearing that was conducted in her absence. The employee submitted a doctor's certificate through her representative. It was not the first time that the hearing was being postponed due to employee's illness. The conduct of the employee's representative at the disciplinary hearing made matters worse for the employee. Despite the submission of a medical certificate, the chairman of the disciplinary hearing continued with the disciplinary inquiry in the absence of the employee. The chairman found the employee guilty and dismissed her.

The matter was then referred to the Transkei high court, which found the chairman's decision to continue with the disciplinary inquiry in the absence of the employee to be procedurally fair.

The employee appealed against this decision to the full bench of the high court, which found the dismissal to be procedurally unfair.

Dissatisfied with the outcome, the employer appealed to the supreme court of appeal to have the decision of the full bench overturned. The supreme court of appeal upheld the appeal and set aside the decision of the full bench of the high court.

The supreme court of appeal commented on the medical certificate that was submitted by the employee. It said that the medical certificate did not state that the employee was unable to attend the disciplinary hearing. Given the general conduct of the employee and her representative at the disciplinary hearing, the supreme court of appeal also questioned the circumstances under which the certificate was obtained. The supreme court of appeal said that the conduct of the employee's representative at the disciplinary hearing should be attributed to the employee. In other words the employee could not divorce herself from the conduct of her representative at the disciplinary hearing.

Two important issues arise from this decision. Firstly, for a medical certificate to be considered a valid reason to postpone the hearing, it should say more about how the employee's condition affects his ability to attend disciplinary hearing. Secondly, employees should disapprove of the conduct of their representatives during the disciplinary hearing. Otherwise the representative's conduct will be attributed to the employee.

lSandile July is a director at Werksmans and is assisted by David Mogaswa, an associate at Werksmans

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