Proceeding with a Disciplinary Hearing When the Employee Is Absent

Proceeding with a Disciplinary Hearing When the Employee Is Absent: What South African Employers Must Know

In South African labour law, the maxim “audi alteram partem” — literally, “hear the other side” — remains a foundational requirement when disciplinary action is considered. Simply put: before an employer dismisses an employee, that employee must generally be given an opportunity to present their case. However, what happens when the employee refuses or fails to attend the hearing? Can an employer lawfully proceed in the employee’s absence? The short answer is: yes — but only under certain conditions and with due care.

The Legal Basis for Fair Procedure

Under the Labour Relations Act 66 of 1995 (LRA), a dismissal that is not automatically unfair must be both for a fair reason and pursued in accordance with a fair procedure (Section 188). The associated Code of Good Practice: Dismissal (Schedule 8 to the LRA) sets out minimum procedural standards. For example, it requires that an employee be informed of the allegations in language they understand, allowed a reasonable time to prepare a response, and able to be assisted by a fellow employee or trade-union representative.

The question of an absent employee often arises when an employer schedules a hearing and the employee simply does not attend — whether because of ill health, lack of interest, or other reasons. The employer is left in limbo: cannot dismiss without a hearing; but cannot wait indefinitely.

When Can the Hearing Proceed in the Employee’s Absence?

Several South African commentators and case-law sources address this scenario:

According to LabourGuide: “Strictly speaking, no employee may be dismissed without a hearing being held. … According to South Africa’s labour law, the employer is entitled to proceed with a hearing in absentia … if an employee refuses or fails to attend or participate without good cause.”

Magate Phala, labour law specialist, emphasises that the employer must still give the employee “the opportunity … to state a case” and that a chairperson may treat repeated postponements by the employee with less leniency.
Consupport provides a procedural checklist: “If the employee does not attend, the chairperson must determine why, then decide whether a postponement is required or whether to proceed in absentia. If the employee refuses without valid cause, the hearing may continue in their absence.”

The key takeaway: While the employee’s presence is strongly preferred, the employer may proceed without them if the employee has been afforded all the procedural protections and has elected (by act or omission) not to engage.

Key Conditions & Practical Considerations

Employers must ensure the following to proceed lawfully:

Proper Notice – The employee must receive a written invitation to the hearing, detailing the allegations, time, place, rights (representation) and consequences of non-attendance.
Reasonable Opportunity to Attend – Allow sufficient time for preparation, representation, and for the employee to communicate challenges (ill health, absence).
Postponement Where Justified – If the employee provides a valid reason (medical certificate, unavailability of representative) for non-attendance, prudence requires at least one postponement.
Proof of Waiver or Election – If the employee fails to attend, the employer should document that the employee was made aware that the hearing would proceed without them and that they either declined or failed to respond.
Fair Adjudication in Absentia – The hearing must still afford the employee a fair process: evidence must be presented, findings made objectively, and the decision communicated. Failure to do so may render the dismissal procedurally unfair.

Additional Research & Perspectives

In Mphepya v South African Weather Service (2010), an employee refused to attend a hearing citing unfair treatment but without taking part; the arbitrator found the employee had effectively waived their opportunity to be heard, and the hearing in absentia was upheld.
The distinction between abscondment, desertion, and unauthorised absence is relevant. Employers must ascertain the employee’s intention (return to work or not) and act accordingly — including whether to hold a hearing or proceed with termination on contract repudiation grounds.
Thought-leader Tamley Burds emphasises that even in such absence cases employers should continue to apply “progressive discipline, investigation, job-related inquiry, and ensure the sanction is proportionate” — underscoring that absence alone does not always justify summary dismissal without proper process.

Implications for HR Practice

Ensure your disciplinary policy clearly covers the possibility of employee non-attendance and outlines when hearings may continue in absence.
Train chairpersons on pre-hearing protocols: verifying notice, confirming representation rights, assessing postponement requests and documenting refusal or absence.
Keep robust records of the correspondence sent to the employee, the reasons for non-attendance (if known), and the decision to proceed.
Advise that proceeding in absence should still reflect the same fairness standards as if the employee were present. Skipping this leads to unfair dismissal risk.
If in doubt — for senior employees, or serious allegations — consider seeking legal advice before dismissing in absentia.

While the right to a hearing exists for every employee, labour law recognises that an employee may — by their conduct or omission — forfeit the practical ability to participate. In those situations, an employer may proceed with a disciplinary hearing in the employee’s absence, provided they have followed fair procedure, given proper notice, and afforded the employee a reasonable opportunity to be heard. Ignoring these steps or dismissing without any hearing still carries significant risk of being found procedurally unfair.

This case is a timely reminder that respect and professionalism remain non-negotiable in every workplace interaction — even when conflict arises. Establishing clear expectations and enforcing them consistently protects not only leadership authority, but also the dignity and order every successful workplace depends on.

At HR Consult, we assist organisations in managing disciplinary procedures, union relations, and communication policies that align with the Labour Relations Act and best-practice industrial relations standards.

📌 Partner with HR Consult to strengthen your disciplinary and communication frameworks, reduce legal risk, and maintain a culture where accountability and respect work hand-in-hand.

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Adapted by HR Consult, specialists in South African labour and employment law compliance.

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