Davies Ndumiso Sibanda, Labour Matters
MANY workers have been advised by their representatives not to attend disciplinary hearings and in the end find themselves dismissed while absent.
At law, when the employer advises the worker of the date, time and venue of the disciplinary hearing, he has done his part. When the worker who has been duly notified of the hearing does not attend the hearing, it is to his disadvantage as the hearing may proceed without him being heard. If the worker is dismissed he cannot claim unfair dismissal.
In the matter Zesa Enterprises (Pvt) LTD vs Stevawo Judgment No SC 29/2017, Stevawo had been notified of the date of the hearing against him, he asked for a postponement in order to get a lawyer. The request was granted.
He was told that at the next set down date the hearing would proceed whether he attends or not. A day before the set down date Stevawo sent an email to the employer asking for another postponement and did not bother to attend the hearing. The hearing went ahead and he was dismissed.
Stevawo then approached the Labour Court which ruled that his right to be heard was violated. The employer then appealed to the Supreme Court which ruled that the right to be heard is not an absolute. Immutable rule of law as it can be waived and forfeited where the beneficiary is at fault.
The court went further to say by absenting himself from the hearing, the employee irrevocably waived his right to be heard and the disciplinary committee was within its rights to proceed without the employee.
The court said: “In light of his deliberate default from the hearing, the disciplinary committee was within its rights in proceeding with the hearing in his absence as previously advised.
The respondent cannot be heard to complain when he deliberately absented himself from the hearing with the full knowledge that the disciplinary hearing was going to proceed in his absence. He voluntarily elected not to attend the hearing. He has no one to blame except himself, volenti non fit injuria. (If you place yourself in the way of harm, you cannot bring a claim against the other party).”
This case brings to rest many disputes that have been raised by workers who have just written letters requesting postponement and thereafter don’t bother to attend hearings and only to surface when they claim unfair dismissal as they did not attend the hearing.
Simply put, even after asking for postponement, one should attend the hearing unless postponement has been granted.
In conclusion, the right to be heard is not absolute and workers who do not attend hearings after having been notified do so to their own disadvantage.
Davies Ndumiso Sibanda can be contacted on: email: [email protected], or cell No: 0772 375 235.