In an interesting arbitration, an employee had been away without leave for 10 days. The employee had in the past received warnings for being absent without leave. On this particular occasion, the employer conducted a disciplinary hearing and dismissed the employee in the employee’s absence.
The arbitrator ruled that the employer should at least have made an attempt to try to contact the employee to come to the disciplinary hearing. Even if this attempt was futile, the employer must show that the rules of allowing both sides to be heard were attempted.
In essence, there are no clear-cut or cut-and-dried cases. The rules of natural justice and the Labour Relations Act expect an employer, at least, to try to allow an employee to have his/her say. The concept of an “audi alterem partem “ is the cornerstone of the labour relations arena, and the employer must bear the onus to show that, at all stages, the employee was allowed to have his/her say and that this say was taken into account.
For further information or any labour related matters, you can contact Bernard Reisner:
W.Tel no.: 021-423-3959