WAIVED RIGHT TO BE HEARD AFTER REPEATEDLY DECLINING TO ATTEND DISCIPLINARY HEARING WITHOUT REASON

In the matter of CHEMICAL, ENERGY, PAPER, PRINTING, WOOD AND ALLIED WORKERS’ UNION OBO LUVUYO / ENGEN PETROLEUM – (2023) 32 NBCCI 7.1.2 [2023] 4 BALR 327 (NBCCI) The employee was employed as a Professional Bulk Truck Operator.

The employee was called to a disciplinary hearing, but the hearing faced several postponements due to the employee’s absence. His consistent claim for these delays was that he was medically unwell and thus unable to attend. However, the presiding officer, growing impatient, decided to hold the hearing in his absence and found him guilty. This resulted in the employee’s employment being terminated on 5 September 2022.

The employee contended that his dismissal was unfair since he had produced multiple medical certificates. The employer confirmed the receipt of a certificate on 12 July 2022, which only accounted for one day of absence. However, a thorough review of all medical documents revealed the following:

1. A certificate issued on 30 May 2022 stated that the employee was fit for light duty, contradicting another which booked him off from 30 May to 1 June.
2. A physiotherapist’s note booked him off from 3 June to 17 June 2022.
3. He was declared fit for duty on 20 June 2022.
4. Certificates stated that he was unable to perform, or only able to perform lighter duties from 29 June to 1 July and 7 July to 8 July 2022.

The employee claimed personal health issues as the reason for his absence on some occasions, on other occasions he mentioned the unavailability of his representative. The presiding officer had been lenient, granting postponements on multiple instances. However, when all medical certificates were scrutinised, there were unexplained gaps in the employee’s absence. Notably, some certificates only recommended lighter duty, not a full leave of absence.

At arbitration, the arbitrator highlighted a crucial point: employees who choose not to attend disciplinary hearings, for whatever reason, take a significant risk.

Taking into account the entirety of the evidence, and the inconsistencies in the employee’s claims, it was ruled that his dismissal was, in fact, procedurally fair.

J Goldberg