Section 4(1) of Schedule 8 of Labour Relations Act Code of Good Practice: Dismissal states that an employee has the right to state his or her case in the face of a misconduct charge at a disciplinary hearing. “The employee should be allowed the opportunity to state a case in response to the allegations.”

However, does the employee need to present to make his or her case, at a disciplinary hearing, when they are in prison? Oberholzer v Central University of Technology, Free State – (2017)26 CCMA 7.17.1 also reported at [2017] 6 BALR 678 (CCMA) provides clarity.

An employee was dismissed after a disciplinary hearing was held in his absence. This is because he was in police custody. The employee had been invited to make written representations and his legal representative was present at the disciplinary hearing.

The employee was invited – twice – to present submissions to mitigate the charges levelled at him. The employee claimed that his dismissal was procedurally unfair because he was not afforded an opportunity to state his version of the facts.

The CCMA Commissioner noted that the Code of Good Practice: Dismissal merely requires an employer to conduct a pre-dismissal investigation and afford the accused employee an opportunity to “state a case”.

It was agreed that the employee was not in a position to attend the disciplinary hearing but he had been afforded the opportunity to make representations. The employee was an admitted advocate and could have made written submissions as the date on which he would be available to attend a hearing was unknown.

The Commissioner found that the employer had not acted unfairly by proceeding with the inquiry in the manner in which it had done. The application was dismissed.

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