Employees may be required to attend disciplinary hearings even if booked off sick

Employees may be required to attend disciplinary hearings even if booked off sick

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 genuinely ill, and must be afforded time to recover from their ailment prior to attending a disciplinary hearing.  However, on occasion, such medical certificates are merely an attempt to frustrate the continuation of a disciplinary hearing.

The question which rises in these circumstances is, can an employer continue with a disciplinary hearing when the employee being charged with misconduct has been booked of sick by way of an apparently legitimate medical certificate?

The conventional wisdom has been that the production of a medical certificate obliges the employer to put the disciplinary hearing on hold.  The Supreme Court of Appeal (SCA) judgment, Old Mutual  v  Gumbi [2007] SCA, suggests that there are circumstances when an employer can justifiably proceed with a disciplinary hearing in the absence of an employee who has been booked off sick.

SA case law abounds with authority confirming that an employee who fails to take advantage of such an opportunity to be heard, cannot subsequently claim that their dismissal was procedurally unfair.

The Old Mutual SCA judgment addressed this very issue, concluding that disciplinary hearings may well, in certain circumstances, justifiably proceed in the absence of an alleged offender who has, at face value, a medical certificate booking them off sick for the day(s) on which the hearing is scheduled to proceed.

In this case, the employee was summonsed to a hearing after having become abusive toward and threatening to assault his superior when he was asked to explain claims for subsistence and travelling expenses.

The employee produced a medical certificate before the hearing which was, none the less, held in his absence.  The employee was dismissed.  However, Old Mutual reinstated the employee with a view to recharging him, after his representative made representations motivating that the dismissal be overturned, due to the fact that the employee could not attend the hearing due to illness.

The next day, the employee was issued notice to attend a fresh hearing.

After an adjournment, the employee furnished the hearing chairperson with a medical certificate which referred to “tension headache and enteritis”.

The chairperson adjourned the hearing for an hour to enable the employee to recover from his alleged headache.  The employee and his representative refused to return to the hearing as they were of the view that the medical certificate entitled them to an adjournment.

The chairperson disagreed, and found the employee guilty in his absence and imposed the sanction of dismissal.

The judgment concluded that the employee “wanted to have the hearing aborted so as to prevent the fulfilment of a … fair disciplinary hearing”.

The dismissal was held to have been fair in that the employee had frustrated the fulfilment of the employer’s procedural fairness obligations.

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