Schedule 8 (Code of Good Practice: Dismissal) annexed to the Labour Relations Act (LRA), foresaw that there may be circumstances where an employer may not be able to fully comply with pre-dismissal procedures. Item 4(4) of Schedule 8 provides that, in exceptional circumstances, if the employer cannot reasonably be expected to comply with the procedural guidelines contained in Item 4 (Fair Procedure), the employer may dispense with pre-dismissal procedures. These procedures to be dispensed with could include the requirement to have the employee present at the disciplinary proceedings.
Within context of conducting the hearing in absentia, what would constitute exceptional circumstances?
There is not an abundance of relevant case law that I could find during my research of this blog, but the concept of a hearing in absentia seems to imply, almost exclusively, to circumstances where the employee is unwilling to attend the hearing, thus doing so out of choice.
A distinction should therefore be drawn between, on the one hand, circumstances where the employee wants to partake in the hearing but is prevented to do so by circumstances beyond his/her control (such as illness) and, on the other hand, circumstances where the employee, insubordinately so, elects not to attend the hearing.
In the former circumstances a much more accommodative approach will usually be followed, and the employer will go to considerable lengths to ensure the employee’s participation in the proceedings, other than simply proceeding with it in the employee’s absence.
My focus in this blog is however on the situation where the employee elects not to partake in the disciplinary proceedings in an insubordinate fashion.
The exceptional circumstance which presents itself within this context comes about where the employer duly complied with all pre-hearing procedures, such as:
- Having conducted a proper investigation into the subject matter of the hearing.
- Having presented the employee with a well-formulated charge and have done so in good time.
- Having advised the employee of the particulars of the disciplinary hearing, i.e.:
- Date and time.
- Particulars of the person to preside at the hearing.
- The rights the employee is entitled to including the right (and obligation) to physically attend the proceedings.
Despite due compliance with the abovementioned procedural aspects, the employee then either expressly refuses to attend the hearing and indicates such intention beforehand, or simply does not turn up at the appointed time of the hearing.
This is where the employer is faced with the empty chair scenario.
From the viewpoint of the presiding officer of the hearing, there is a standard way in which the employer should approach this type of situation, bearing in mind that it is assumed that the presiding officer is only formally confronted with the empty chair scenario at the commencement of the proceedings.