Laws are everywhere; they ensure that rights are not violated, people are not exploited, and agreement terms are not breached. Human resources management is no exception. Labour laws in Botswana are derived from various Acts, i.e., Employment, Trade Disputes, Workers’ Compensation Act, etc. Secondly, from the Codes of Good Practice, Model Procedures and Agreements, formally known as the National Industrial Relations Code of Good Practice. Thirdly, from case law and finally from the ILO Standards.
Usually, where one source lacks, the other covers up. Employee relations matters are a concern nationwide, they usually crop up when there is non-compliance. This is due to various reasons, misinterpretations of the law for one, or lack of knowledge altogether. It is no secret that employment is guided by discipline, on all fronts, i.e., employer and employee.
One party gives and the other party receives, but this arrangement is governed by the above-mentioned laws. Circling back to the discipline aspect, the key is to ensure that all parties play within the lines and should one party not do so, then certain measures are to be taken. The measures in question are disciplinary action. But how, you may ask? Through a fair disciplinary process.
The second to last phase of the said disciplinary process is a disciplinary hearing. In an ideal world, this process is flawless, but that is not always the case. At times, employees accused of committing offences simply do not pitch. In such cases, can employers proceed with hearings? The answer is yes, but let us explain how. Read on!
The process
A disciplinary hearing is a type of setting where an employee is presented with an opportunity to defend themselves against allegations of misconduct brought against them. This allows for the employee to be heard. Furthermore, the purpose of a disciplinary hearing is to verify whether misconduct has indeed been committed, as well as what the appropriate sanction is, i.e., written warning, demotion or dismissal. It is meant to ensure the procedural fairness element in accordance with the rules of natural justice.
This, therefore, means failing to adhere to this may lead to a dismissal being deemed procedurally unfair. A fair disciplinary hearing, on the other hand, requires the following, just to name a few: a neutral chairperson, the complainant and accused to be present, questioning of witnesses and evidence by both parties, etc. Holding a disciplinary hearing in the absence of the accused surely contradicts the fair hearing concept. Read on to understand the exception!
The Exception
There are various reasons why employees may refuse to attend disciplinary hearings. It could be because they are misinformed as to what the hearing stands for and presents, maybe they fear it is unnecessary because the outcome is inevitable, maybe they are avoiding confrontation and the outcome since they are guilty, or there is a valid reason.
Where there is no valid reason, according to the case of Molatlhegi v Grinrod Petrologistics (PTY) LTD the employer can proceed with the hearing provided: firstly they have exhausted all reasonable options of contacting the employee i.e., through traditional methods of registered mail to the last known address, the use of the employees last known contact numbers, the employer must also consider the use of modern methods such as email, text messages, social media (e.g Facebook, Instagram etc.) and other instant messaging devices; secondly the employer has, where reasonably possible, warned the employee that there is a possibility of holding a hearing in his or her absence, which hearing may lead to his or her dismissal; finally the employer has invited the employee to make written submissions even if he/she would be absent at the hearing.
If the above has not been done nor proved, then any sanction imposed after the hearing can be challenged and the process deemed unprocedural.
Contacts
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