Whilst employees have a right to be heard prior to their dismissal, many employers have been confronted by the dilatory tactics adopted by an employee facing disciplinary action. These tactics, employed with much zeal, are aimed at frustrating and thus prolonging the disciplinary process.
Employers are required to provide the accused employee with the opportunity to be heard. If employees choose not to take up the opportunity, employers are not hamstrung.
In the recent judgment of South African Custodial Management (Pty) Ltd and Kensani Corrections Management (Pty) Ltd v UPSCO obo Makatu & others, the Labour Court, per Moshoana J, held that the dismissed employees had been afforded more than adequate opportunity to be heard and yet they had actively and systematically spurned the opportunity.
For a period of over three months, the dismissed employees had “employed every trick in the book to render the disciplinary hearing dysfunctional.”
The Court held that the dismissed employees “launched spurious applications aimed at foiling the process and they valorously launched attacks on the independent chairperson.” When the independent chairperson recused himself, the Court held that it was not necessary for the proceedings to start afresh.
An employer is required to give the employee an opportunity to be heard, but if the employee rejects the opportunity, a complaint of procedural unfairness is a hollow one.
Some of the options available to an employer facing such dilatory tactics by an accused employee is to argue that the employee, through his conduct, has waived his rights to participate in the disciplinary hearing and for the hearing to proceed in the employee’s absence; alternatively, to terminate the hearing and request that the employee make written submissions why he should not be dismissed.
The decision of what would be the best option to take would depend on the prevailing circumstances, such as the progress of the disciplinary process and whether or not the employee has displayed clear conduct evidencing a waiver of his right to participate in the proceedings.