Are post-dismissal hearings mandatory when an employee is incarcerated or ill and therefore unable to attend a disciplinary hearing? A recent Labour Court (the "Court") case examined this question and shed light on the importance of ensuring procedural fairness during disciplinary proceedings. In this case, the Court developed a list of requirements to determine whether the procedural fairness of a hearing in absentia is adequate.

The Code of Good Practice: Dismissal requires an employer to, amongst other things:

  • notify the employee of the allegations against them using a form and language the employee can reasonably understand;
  • grant the employee reasonable time to prepare a response to the allegations; and
  • allow the employee the optional assistance of a trade union representative or a fellow employee.

However, the question remains, what happens in instances where an employee is incarcerated or ill and therefore is unable to attend their disciplinary or incapacity proceedings in person?

In the case of Ndzeru v Transnet National Ports Authority and others, the Court considered whether an incarcerated employee who had been dismissed in absentia while he was in prison was entitled to a post-dismissal in-person hearing after he had been released from prison.

In this matter, the Applicant, Mr Muxe Ndzeru, was employed by Transnet National Ports Authority as a Marine Shore Hand. On 1 June 2019, Mr Ndzeru was involved in a hijacking incident where he defended himself with his firearm and shot two persons. Thereafter, he was arrested on 7 June 2019 in Limpopo, pending trial. Several weeks passed without Mr Ndzeru reporting to work and during mid-July 2019, a notice of an incapacity hearing was handed to Mr Ndzeru's spouse to convey to him. As Mr Ndzeru was unable to attend the hearing in person, a trade union representative attended the hearing on his behalf. After the hearing, Mr Ndzeru was found guilty of failing to discharge his duties and was dismissed.

Mr Ndzeru challenged the fairness of his dismissal at the Commission for Conciliation, Mediation and Arbitration. His challenge was unsuccessful and he sought to have the award set aside by the Labour Court.

Fairness of the procedure followed

The Court found that the procedural fairness of Ndzeru's dismissal depended on the adequacy of the hearing he was afforded in absentia and whether the failure to hold a post-dismissal hearing meant that any defects in the original hearing were not rectified.

The Court found that where an employer is faced with uncertainty about if and/or when an employee might be expected to be able to return to work, the employer cannot be expected to wait until some indeterminate day in the future when the employee might appear, before deciding on the feasibility of the employee's continued employment. Under these circumstances, a hearing in absentia may follow.

To determine whether the requirements for procedural fairness had been adequately complied with, the Court developed the following list:

  • if the employee cannot be present at their hearing then, at the very least, they should be invited to submit a written statement setting out their defence and why they should not be disciplined;
  • the employee's written statement should preferably be made after having received at least a summation of the material facts advanced by the employer; and
  • If found guilty, the employee could be given a chance to make representations on the sanction to be imposed, even if that is only in a written form.

The Court found that none of the case law Mr Ndzeru had relied upon established a general right to a post-dismissal hearing and whether this should be required would depend on the facts of a particular case.

Based on the presented facts, the Court held that Mr Ndzeru had not challenged the original hearing as being inadequate; this meant that he could not argue that a post-dismissal enquiry was necessary to rectify any shortcomings in the pre-dismissal proceedings. In the circumstances, his dismissal was found to be procedurally fair.

The above matter illustrates the importance of the right to a procedurally fair hearing. Employers should therefore tread with caution when initiating hearings in absentia because an employee is unable to attend a disciplinary hearing.

If faced with similar circumstances, employers should follow the steps outlined by the Court. If certain steps had not been followed during the proceedings, a post-dismissal hearing may be warranted where an employee should be afforded a fair opportunity to be heard as and when they attend a hearing in person.

Although this decision dealt with an absence due to an employee's incarceration, the same steps may usefully be followed where a lengthy absence is due to reasons other than incarceration.

Reviewed by Peter le Roux (Executive Consultant) of ENSafrica's Employment department.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.