Employers are not entitled to dismiss the employee without a hearing.
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 which found that the employee had wilfully excluded himself from the disciplinary hearing and dismissed the case.
The Supreme Court of Appeal upheld this finding because:
- When the disciplinary hearing had first been convened the employee had proffered a medical certificate and a new hearing date was then set. 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.