One of the biggest mistakes an employee can ever make when accused of having breached company rules is to abscond a disciplinary hearing. Practitioners dealing with disciplinary issues can also fall into the trap of not properly handling situations that arise when an accused employee refrains from attending a disciplinary hearing. Employers and employees, alike, should be well versed with the legal implications of failing to attend a disciplinary hearing. In this article, the serious consequences that flow from this wing of our labour law will be discussed. The right to be heard which forms the foundation of every disciplinary process will be explored for in the first place.
The right to be heard
The cornerstone of every hearing, whether in criminal or civil spheres, is the right to be heard. This right is encapsulated in the maxim audi alteram partem translated to “hear the other side”. In terms of this principle, an impartial tribunal must hear a dispute and come up with an impartial determination/resolution (See the article on impartiality). This principle also entails that an employee must be arraigned before a disciplinary tribunal and be given an opportunity to state his or her case. The net effect of this principle is that when it is violated or in other words if the employee is not awarded the opportunity to be heard, the resultant proceedings may be impugned by the courts.
So important is the audi alteram partem principle that our courts in Taylor v Minister of Education & Anor[i] highlighted that:
“The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam’s defence before banishing him from the Garden of Eden. Yet the proper limits of the principle are not precisely defined. In traditional formulation, it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken.”
The view expressed by the courts in Zimbabwe is also observed by courts of other jurisdictions. In this regard in the Labour Court of South Africa and, in a matter between Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others[ii] the court noted that:
“For these reasons, I found that the principles of natural justice had not been observed. Failure by the Department and the respondents to apply the audi alteram partem rule has constituted a procedural impropriety vitiating the agreement in so far as it affected Mr Kock. Accordingly, the argument advanced on behalf of the respondents had to fail.”
Given the importance attached to this principle, the question that begs a response is, what then are the consequences attached to an employees absence from a hearing? This will be dealt with within the next section.
Waiver of the right to be heard
The importance of the right to been outlined above. Despite being important in legal proceedings, this right can be waived or be lost in certain circumstances. Failure to attend a hearing is one of the ways in which the right to be heard can be lost. It is important to note that this failure must be imputed on the employee for the same to lose the right.
The matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo[iii] clearly explains how the waiver of the right to be heard can emanate from the failure by the employee to be present at a hearing. The court in this matter decisively remarked as followed:
“The facts before the court a quo established beyond question that the respondent was given notification of the hearing date. He successfully negotiated for a date convenient to himself but defaulted on the date of hearing. His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer. By deliberately absenting himself from the hearing the respondent irrevocably waived his right to be heard.”
This matter shows that when an employee has a valid reason for not attending a disciplinary hearing such a reason will have to be communicated to the employer. Once communicated the employer must acknowledge the reason and excuse the employee from not attending the hearing. In practice, the disciplinary committee or official is the person who receives such communication and who then excuses the employee. The role of HR in this instance is to facilitate the communication and the documentation that will accompany such permission.
One who alleges that an employee has deliberately absented himself or herself from a hearing has the onus of proving the same. Evidentiary burden entails an obligation to produce the requisite evidence.
This obligation points to the need for practitioners handling disciplinary proceedings to keep adequate documentation. An important document in this regard is the “hearing notification”. This is the document that tells the employee to attend a hearing at a certain place and time and to respond to the allegation so raised. Another important document is the “hearing postponement” document. This is the document that will show that a hearing has been postponed, the reasons thereof as well as the date and place of the next hearing. These documents differ depending on the industry and institution but the principles behind them remain the same. These are the documents that will show whether an employee was aware of the hearing and whether the failure to attend the hearing can be imputed on the same employee.
To illustrate the importance of such documentation I will refer to a matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo. The court took notice of the contents of a hearing notification and realised that:
The notice to appear before the disciplinary committee dated 14 December 2011 advised the respondent of his rights and cautioned him that in the event of him defaulting, the hearing would proceed in his absence.
It is submitted that in the absence of the documentation referred to in this matter the employee would have managed to get away with a clear default. That said, I will hasten to mention that Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo should not be used as authority for failing to recognise genuine reasons put forward by employees when they cannot attend a disciplinary hearing. This aspect will be dealt with next.
The need to trade with caution
The above sections highlighted that a right to be heard is imperative in disciplinary proceedings and that this right can be waived if the employee is at fault. In this section I will reconcile what has been discussed so far with the remarks by the court in the Aloyce Roy Stevawo case when it said:
“His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer.” (Emphasis Added)
Does this mean that the court/tribunal can ignore any reason put forward by the employee unless permitted by the employer? The answer is no, it is submitted.
Factors such previous conduct of the employee in question and the actual reason put forward by the employee will have to be taken into consideration in determining whether the permission to be absent from a hearing is to be granted. These are not the only reasons. What is needed is for the disciplinary authority and practitioners dealing with the discipline to approach the employee’s absence and the reasons put forward with an open mind. If the reason put forward by the employee is such that one can infer that the situation was beyond the control of the employee, then it will only be fair for the hearing not to proceed and foster the audi alterum paterm rule as discussed above.
The discussion in this article dealt with situations were employees decide not to attend a disciplinary hearing. The effect of this absenteeism has also been highlighted together with the need to handle such absenteeism with caution and an open mind. Whilst the employer has the right to accept or refuse the reasons put forward, for not proceeding with a hearing, it is always important to trade on the side of caution. This is especially true if the employee is facing circumstances beyond his or her control or if the employee is resolving issues to do with legal representation.
[i] Taylor v Minister of Education & Anor 1996 (2) ZLR 772
[ii] Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others (ZALC 47 (30 March 2001)
[iii] Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo (Sc 29/2017)