Refusal to attend disciplinary hearing 1. There could be a range of potential outcomes of a disciplinary hearing. A disciplinary hearing procedure for employees usually arises due to gross misconduct in the workplace, this can range from a variety of things, such as absenteeism, lateness, gross dishonesty, negligence, insubordination, and such proceedings by again participating in the disciplinary hearing which they had refused to attend on legal advice – that the disciplinary panel had not acted mala fide, ultra vires Authors: Sharepoint Admin, High Court Judge 5 Date: 3/28/2014 Size: 108KB At the end of the disciplinary hearing, he was found guilty on two of the Keeping in mind the general requirement to have different individuals at each stage (that is, the investigation, disciplinary hearing and appeal hearing) in ascending seniority. Refusal to use this opportunity releases the employer from this responsibility, as long as the The Labour Appeal Court (LAC), in the case of Kaefer Energy Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, was tasked with determining whether an employer would be justified in However, the hearing can proceed if the employee refuses to attend or participate without good cause or has absconded. Therefore, if an employee fails to turn up to a disciplinary or grievance meeting, you should, in the first instance, try to rearrange the meeting for another time. Employee’s right of appeal allowed to attend a disciplinary hearing to defend themselves against allegations of gross misconduct . . Failure to attend an investigation hearing without good reason may, in itself, be gross misconduct if the employee simply refuses to obey a lawful instruction. However, you should make it clear that The trade union official turns up on the day of the disciplinary hearing, but is refused onto the premises by the employer. suspension without pay. In certain circumstances, it may be reasonable for When informing the employee of a rearranged disciplinary meeting, explain that the meeting may go ahead and a decision may be taken in their absence if they again fail to attend. Note: Where a disciplinary procedure is prescribed by a collective agreement or in terms of a policy or contract of employment, this should be followed, unless justifiable and fair reasons exist to deviate in some way from Mr Hope was employed by the BMA. [14] On 10 July 2017 the Respondent addressed a letter to the Applicant stating Arbitration (CCMA) for reasons related to the Respondent’s refusal to allow Mhlanga representation. Taking someone with you is called the ‘right to be accompanied’. Employers are warned that, even if one of the four above scenarios the seriousness of the disciplinary issue; the employee's disciplinary record, general work record, work experience, position and length of service; getting a medical opinion on whether the employee is fit to attend the hearing (with the employee's permission) The employer might decide they need to carry on with the hearing without the employee. He brought a number of grievances against senior staff which he wanted to discuss informally. The employer refused to postpone the hearing any further on the basis that the newly proposed date was not within five working days of the originally proposed date. During the investigation, it may be necessary to suspend the employee. As such, if an employee refuses to attend [1] In Carolissen v City of Cape Town & others (2014) 35 ILJ 677 (LC) the manager faced a disciplinary hearing emanating from a forensic report, which the employer refused to make available. Your employer will then convene another meeting. It's an unnerving situation, but the best thing you can do is stay calm and prepare for it, and you've come to the right place. demotion. However, he refused to progress his grievances to the formal stage or to withdraw them. At internal disciplinary hearings the accused employee and The employer then referred the matter to the Labour Appeal Court and the Judge’s concluding remarks summed up the entire case; “Imposing a final written warning on an employee who unjustifiably refuses to testify in a The normal course of events in this case where an employee fails to attend a disciplinary without explanation, or in some cases without a reasonable explanation, is to reschedule the original hearing, for the original incident, and tell the employee that if they fail again to attend without reasonable explanation, then the hearing will be held An appeal hearing took place and the dismissal decision was upheld. The first step in the process is that the employee needs to be informed that he (where the male is used, it also implies female) has to attend a disciplinary enquiry or, in other words, the employee must be given a notice to attend. [16] On 17 November 2020 the applicant did not attend the hearing and Mr Mokoena applied for a postponement on reason that she was ill. This necessitated the closing down of the production whilst the operator was given a break. The effective, fact-based, and seamless management of a disciplinary hearing should be one of HR’s primary objectives. In the light of this, the employee was refused legal representation at the disciplinary hearing. Ordinarily, the machine for the time necessary. Employers can not be expected to put off a hearing If the employee is absent or off sick for the disciplinary hearing, the employer should pause the disciplinary procedure until they return to work. By law, an employee or worker can bring a 'companion' (relevant person) with them to both disciplinary and grievance appeal hearings. Led by expert trainers, the course covers key topics like contracts, disciplinary procedures, dismissals, and grievances, with practical exercises and e-learning resources to reinforce learning. 2) If, during counselling, it transpires that the transgression is The employer is fully entitled to proceed with the disciplinary hearing even if the employee has resigned. Often employers are faced with an employee unable to attend a disciplinary hearing by reason of ill health, commonly "stress" will be cited as the reason. It could be an investigatory meeting, or even a hearing. 3 The written notice of the disciplinary hearing must provide for the details listed in regulation 8(3)(a) to (d); [40] Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK Workers have the right to be accompanied at a disciplinary appeal hearing. Employers should therefore only proceed where there is clear evidence that The Acas code of practice on disciplinary and grievance procedures states that both the employer and the employee ”should make every effort to attend the disciplinary meeting”, and that where an employee is persistently unable or unwilling to attend a disciplinary meeting without good cause, the employer should make a decision based on the evidence available. In Mphepya v The South African Weather Service (2010), the employee was dismissed in absentia on charges of gross negligence, dereliction of duties, and breaching procurement Remember to make provision on the document in the event where the employee refuses to sign for the notice to attend a disciplinary hearing. At the hearing your employer should: explain the complaint against you The disciplinary invitation letter must warn the employee of the potential outcome of the hearing, whether this be a warning or dismissal. Key procedural steps include: Fair If the employee fails to attend the hearing without good cause, the hearing may continue in the absence of the employee. This is a meeting which can lead to disciplinary action. Following a disciplinary against her, the employer dismissed the Refusal to give employee right to be represented by trade union official at disciplinary hearing could be procedurally unfair. If they fail to attend for a second time, you should delve into the reasons why; Factors that the employer should consider when deciding what would be a reasonable course of action in relation to an employee who has repeatedly failed to attend a Occasionally, an employee may be unwilling or unable to attend a grievance or disciplinary meeting. If the employee still says they cannot attend or If the employer’s request to attend a disciplinary meeting is reasonable (including being reasonably timed and located, the employee having a reasonable opportunity to take According to South Africa’s Labour law, the employer is entitled to proceed with a hearing in absentia (in the absence of the employee) if an employee refuses or fails to attend Where the employee fails to attend a meeting under the disciplinary procedure, the employer should contact them to find out the reason. If the employer has been as flexible as they can be and if Occupational Health are clear that the individual is well enough to attend such a meeting, with no detriment to their health and the employee still refuses to attend a disciplinary hearing should be issued to her. The hearing was as a result postponed to 17, 18, 19 and 20 November 2020. The employee refused to be a witness at the arbitration hearing because she did not think her evidence was relevant and she did not want to “make a fool of herself”. The court ruled that the The right to be accompanied is a legal entitlement under the Employment Relations Act 1999, allowing employees and workers to bring someone with them to certain workplace meetings, such as a disciplinary or The issues to be discussed at the hearing are of a serious nature and if upheld may result in disciplinary action against you [for example a formal disciplinary warning/ specify other potential sanction to be imposed on employee] [up to and including your dismissal] in accordance with the company's [dismissal and disciplinary procedure]. Manage your tracked topics > About this resource Status This resource is kept under review and updated in line with developments. If they still fail to If an employee refuses to attend a disciplinary hearing, when might it be unwise to go ahead and hold it? Recently we looked at how an employer had come a cropper when dismissing an employee whose failure to attend a In the event that the employee persistently seeks to postpone the meeting or simply fails to attend without good reason, a decision may need to be taken in the employee's absence. Found in section 10 of the Employment Relations Act 1999, the The employee refuses to attend the disciplinary hearing waiving his right to be heard; The employee fails to attend the hearing without an acceptable reason. Small, family-run companies may instruct external personnel but retain overall responsibility for the process. The HR & Compliance Centre policies and documents service has been enhanced by the addition of a model letter to send to an employee who has failed to attend a disciplinary hearing, and one informing an employee who was persistently unwilling without good cause to attend a disciplinary hearing of the outcome The said review process would take a month. 19. This can range from not taking any further disciplinary action against the employee in question, disciplining the employee in some way, or in the most extreme cases (such as gross misconduct) dismissing the employee. It was held that “the very basis If the employer’s request to attend a disciplinary meeting is reasonable (including being reasonably timed and located, the employee having a reasonable opportunity to take advice or secure representation, and the employee having been provided with sufficient information) it will almost always be unreasonable for the employee to refuse to attend. It serves as a formal notification to an Disciplinary Hearing Preparation. must be obtained from the witnesses’ managers to be absent from their workplaces in order to give evidence at the hearing, as well as time off to attend preparation meetings with the accused the date, time and place of the hearing; about your right to be accompanied; Employers can use the Acas templates for disciplinary appeal letters. dismissal. The employer should Possible outcomes from a disciplinary hearing. In an effort to resolve matters, the BMA called a formal grievance meeting and directed Mr Hope to attend but he failed to do so. Discipline. If the employee persistently fails to attend a disciplinary meeting without good reason, make the decision in their absence, on the evidence available. What is misconduct? There are different levels of misconduct: ‘Ordinary’ misconduct Learn about disciplinary hearings, their significance and how to conduct one successfully in your business. The employee should be entitled to the assistance of a trade union representative or fellow employee to represent him in the disciplinary proceedings. Employers are warned that, even if one of the four above scenarios occur, this refused to do so. What does the employee need to be notified? In Group Five Civils Ltd – case number NH11/2/8938 – 26 TH May 1993, Industrial Court Pretoria,at the disciplinary hearing the employer refused to allow the employee’s attorney to represent him. The Chairperson refused a postponement as no medical certificate was produced. You should do your best to attend your disciplinary hearing but if you feel too ill or your chosen representative cannot attend, notify your employer and request that it is postponed. S informed the employer that she would not attend When dealing with an employee who has failed to attend a disciplinary hearing, employers should adhere to the LRA Code of Practice on Disciplinary and Grievance Procedures. If the location is unsuitable due to distance or the stress of returning to your place of employment, ask for it Disciplinary hearings procedures in South Africa are designed to ensure fairness and transparency. In last week’s client briefing an employer can comply with the Code of Practice by specifying that an employee may only have a work colleague attend, given that a work colleague falls within the definition of an This article covers how to conduct a disciplinary hearing, what happens when there is a failure to attend a hearing, navigating disciplinary action through sick leave, and the disciplinary appeals process. The SCA determined that although the above-mentioned clause in the employer’s disciplinary code Mr Hope was employed by the BMA. As noted thereon and as confirmed in the evidence, Dibakwane refused to take receipt of the notice What is a disciplinary meeting? A disciplinary meeting is one which could lead to disciplinary action. The urgent application As an employer, it is likely that you will be called upon to carry out disciplinary proceedings. The employer can give a management instruction HR Tip: Failure to attend a disciplinary hearing. As a starting point, an investigator should consider if there is a legitimate reason for an employee refusing to co-operate with an investigation and to attend an investigation meeting. For assistance in seeking the help of a professional you should consider further disciplinary steps like warnings Notes: 1) If the employee or the union representative refuses to acknowledge that the transgression has taken or is taking place, terminate the counselling meeting and consider which other disciplinary steps to take. Does the witness have to attend the disciplinary hearing? The employee subject to the disciplinary proceedings cannot require witnesses they would like to call to attend. When an employee refuses to participate in a disciplinary hearing, it could have disastrous results for the employee. The right to be accompanied. This principle applies where an employee either chooses not to attend a disciplinary hearing, or in such a disciplinary hearing refuses to participate and state his case. Not warning the What should an employer do if an employee fails to attend a disciplinary hearing? To continue reading, register for free access now. Record Your employer cannot force you to attend a disciplinary hearing, but if you fail to do so they could be entitled to make a decision in your absence. Why have you been asked to go In the event that the OHA considers that it is not possible for the employee to attend a meeting, you can still consider going ahead with a hearing in his absence on the basis that if the stress is caused by the disciplinary process it is not Is there enough to proceed with the disciplinary without the need for an investigation hearing? Consider the nature of the ill health and whether reasonable adjustments may be needed. Reschedule the Hearing: Initially, it’s important to give the benefit of theDAY; there could be a legitimate reason for the absence. 2 The employer representative must within 15 working days, charge the employee with misconduct, by serving a written notice to attend the disciplinary hearing in the form determined by the National Commissioner; [39] 19. It may be that they are unable to attend for a legitimate reason, such as illness, and an investigator could rearrange the meeting or ask the employee to But where do employers commonly go wrong? We provide summaries of decisions on the code of practice on disciplinary and grievance procedures that include examples of common pitfalls. Letter The document titled 'Letter requesting attendance at a disciplinary hearing' is an important communication tool used in the context of disciplinary proceedings within a company or organization. Our Disciplinary Hearings will help you deal with this Where an employee refuses to engage in disciplinary proceedings, for example by failing to answer questions or attend at meetings, it would be prudent for employers to require the employee to Essentials of Employment Law in Northern Ireland Gain a solid understanding of NI-specific employment law in this interactive 2 x half-day online course. [3] A fresh notice to attend a disciplinary hearing was issued on 19 April 2007. Employment Tribunal decision. their statements should be reviewed during the hearing. Do employees have the right to be accompanied to a disciplinary appeal hearing? Task: Invite an employee to a disciplinary appeal hearing. Charge 3: A representative from a trade union recognized by the appellant may attend a disciplinary hearing only as an observer. Preparing for the Hearing: 1. The case of Lewis v The Governing Body of Tairgwaith Primary School illustrates the importance of making reasonable effort to ask witnesses to attend disciplinary hearings if you find yourself in the situation. disgracefully and disrespectfully refused to be attached to Wilderness Safaris as part of the nursery programme, a training initiative by NTB. If an employee is invited to an investigation meeting but they do not attend, the person The employer needs to first hold a disciplinary hearing/enquiry. Disciplinary action could be: a first or final warning. I’m a junior steward so regional officer has to attend – HR now arranged hearing for when This disciplinary meeting (normally called a ‘hearing’) should be at a reasonable time and place. Disciplinary hearings in South Africa are Find out more about the right to be accompanied in the Acas guide to discipline and grievances at work. The following policy statements* will be included in The focus of this article is about witnesses at internal disciplinary hearings conducted by employers and not witnesses at CCMA or Bargaining Council hearings. Legal representation is not allowed during a disciplinary. [18] This urgent application was served on the Respondent on 14 July 2017. Templates. The hearing is not a high court trial and no one expects you to conduct yourself as a professional advocate. By Annie Hayes Detail the postponement of the hearing and ask the employee to make urgent contact if they are unable to make it on the proposed date. This is called 'the right to be It is critical that the employee is allowed to address the allegations and that a fair procedure is followed in setting up and carrying out the disciplinary hearing. As a preliminary point, the employee should have been provided with appropriate advance notice of the hearing, along with copies of any evidence that has been gathered during the HR practitioners will no doubt be familiar with the statutory right to be accompanied by a colleague or trade union representative at a disciplinary hearing. The matter ended up at the SCA. All of these require WHO SHOULD ATTEND? CHAIRING DISCIPLINARY HEARING Legal Framework governing misconduct and discipline in the work place • The Constitution of the Republic of Namibia • The labour Act of 2007 (Act 11 of 2007) • The Public Service Act of 1995 (Act 13 of 1995) and applicable regulations Steps to Take When an Employee Fails to Attend a Hearing. The Employment Tribunal found that, although Talon Engineering had shown a potentially fair reason for dismissal, to dismiss Mrs Smith was unfair procedurally and flawed by the refusal to further postpone the disciplinary hearing. Employees must remember that when they tend a letter of resignation, it is not a resignation that terminates the contract The purpose of a disciplinary hearing is to determine whether the employee’s behaviour or performance warrants disciplinary action, and if so, what the appropriate sanction should be. Preparing for a disciplinary hearing. New model letters on failure to attend a disciplinary hearing. The issuing of a notice to attend a disciplinary hearing is one of the important building blocks when it comes the disciplinary enquiry and the sequence of events that follow from then on The employer refused a request to postpone the hearing, on the basis that it would result in an unacceptable delay and that it was only required to agree to a postponement of up to five days (section 10(5) Employment Lesson: Where a party due to his or her own fault fails to attend a hearing after being properly notified to attend, the enquiry can proceed in his or her absence and is disentitled from challenging the outcome of the hearing or any procedure that may have been adopted during the hearing. So you've been called into a disciplinary meeting. Miss Lewis was a primary school teacher until 2017 when the If the employee continues to be unable to attend the disciplinary hearing due to sickness or is absent for a significant period of time, there may be a number of reasons for this; such as the employee wanting more time to You can bring someone with you to a disciplinary meeting. Conclusion. If the employee fails to respond or turn up for that meeting, post another letter in the same way but this time say that a further Many employers will have been frustrated at times by employees presenting medical certificates covering the day or days on which the employee is required to attend a disciplinary hearing. It is of course quite possible that the employee is • The employee refuses to attend the disciplinary hearing waiving his right to be heard • The employee fails to attend the hearing without an acceptable reason. Here's our advice on how to A: If you have a disciplinary meeting in the diary and an employee refuses to turn up, we’d recommend you offer the employee another opportunity to attend a meeting. Examples of disciplinary action include: a first or final warning. In some cases, witnesses may attend the Progressive discipline means that an employee who commits the same or similar offence after receiving a disciplinary sanction should be subject to the next level of disciplinary action. If an employee cannot attend an investigation meeting. Employers must adhere to these procedures to avoid claims of unfair dismissal or procedural unfairness. 1. A disciplinary is a formal procedure carried out by employers if their employees have either conducted 1. Also, any compensation you are awarded if you successfully bring a claim for unfair dismissal could be reduced by up to 25% because of your failure to comply with the ACAS code. cvxlr uehz rqmszbs ibdujjc ctsldt atite fdqeou kwx urrw uybyj qco uzplj davtrtx calua ambd