Can I be dismissed from work without a hearing? Very often, a situation arises where employees (accused of misconduct) and after being issued with a notice to attend a formal disciplinary hearing on a specified date and time, then does not avail themselves at the enquiry. Many reasons furnished by the employees in cases like these, range from being medically unfit to attend the disciplinary hearing, not being fully prepared and/or that the representative is not available.
Item 4 (1) of Schedule 8 (Code of Practice: Dismissal) of the Labour Relations Act, 66 of 1995 as amended, provides that normally the employer should investigate the matter to determine whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a form and language that the employee can reasonably understand. The employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare the response and to the assistance of a trade union representative or fellow employee. After the enquiry, the employer should communicate the decision taken, and preferably furnish the employee with written notification of that decision.
Chairpersons of the disciplinary hearings are required to take control and handle these types of situations as preliminary issues and/or preliminary points.
Before making a ruling on a point in limine, the chairperson must request a detailed explanation or argument and/or counter arguments on the points to understand such point. The chairperson may ask questions to clarify the points or objections raised. the chairperson’s ruling is final.
In Scott and Another v Poupard and Another, Holmes JA held in one of his landmark judgements, that:
“It is an equitable doctrine, based on the rule that a party cannot take advantage of his own default, to the loss or injury of another. The principle may be stated thus: Where a party to a contract, in breach of his duty, prevents the fulfilment of a condition upon the happening of which he would become bound in obligation and does so with the intention of frustrating it, the unfulfilled condition will be deemed to have been fulfilled against him”.
Therefore, it is recommended that employers should appoint experienced and competent chairpersons of disciplinary hearings with traceable track record in managing and conducting disciplinary matters to preside over their enquiries including complex matters.