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EFF members walk out of disciplinary hearing! Here's what the law says about employees who do this

by , 09 October 2014
On Tuesday, the much anticipated disciplinary hearing in Parliament against Julius Malema and 19 other Economic Freedom Fighters (EFF) members finally got underway.

But there was drama as Malema and his MPs walked out - leaving the disciplinary hearing to go on in their absence.

According to News24, Malema told the committee holding the hearing that they won't participate in the process because it's an unconstitutional exercise. And it's bound to be biased against the EFF because the committee is dominated by ANC MPs.

As the disciplinary hearing continues without EFF members, the question on every employer's lips is: What does the law say about employees who walk out of their disciplinary hearing?

Read on to find out the answer so you'll know exactly what to do when you face this dilemma in your workplace.

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The law has this to say about employees who walk out of disciplinary hearings

According to LabourNet, the courts have made it clear that employees who wilfully and intentionally choose not to attend their disciplinary hearing do so at their own peril.
As the site explains, in the matter of Rickitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union and others (1991) 12 ILJ 806 (LAC), the Labour Appeal Court decided under the previous Labour Relations Act of 1956 that:
'An employee who is to be disciplined has to attend and partake in those proceedings. If he refuses to do so, he could hardly allege that the proceedings and the outcome of the proceedings were unfair or amounted to an unfair labour practice.'
In Foschini Group v Maidi & others (2010) 31 ILJ 1787 (LAC), also in the Labour Appeal Court, the judge agreed. He noted that:
'It's a trite principle in our law that a party who chooses not to attend a hearing, does so at his or her own peril and is precluded from later complaining about the outcome.'
These two cases make it clear that if an employee intentionally fails to attend his hearing, he'll have a hard time if he tries to challenge the matter at the CCMA or other forum later on.

So what can you do if your employees don't intend to attend their disciplinary hearings?

According to LabourNet, you must do the following to deal with employees who wish to not attend their disciplinary hearings:
  • Give your employee written notice of the disciplinary inquiry;
  • If your employee indicates he doesn't intend to participate, tell him about the possible adverse effect this may have on his case;
  • If your employee still doesn't wish to participate, conduct the disciplinary hearing in his absence and do it as though he's present;
  • If you find your employee guilty, advise him to make representation to mitigate the sanction;
  • If your employee still refuses to participate, the Chairperson must advise him of the consequences; and
  • If he refuses to make representation, the chairperson can proceed to make a decision on the sanction.
The bottom line: Conducting a disciplinary hearing in your employee's absence is complicated. While past decisions of the courts provide guidelines on how to proceed, it's a good idea to get legal advice when you're facing this dilemma because every case is unique. This will help ensure you deal with the situation effectively and most importantly avoid finding yourself on the wrong side of labour law.
PS: For more information on disciplinary hearings, we strongly recommend you check out The Chairman's Guide to Disciplinary Hearings: How to Chair 100% Legally Compliant Hearings.


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