Virtual hearings are here to stay - 3

31 May 2021 00:00 by Dr Hilda Grobler

In the third of four articles which look at what happens when parties refuse to participate virtually, Dr Hilda Grobler discusses the findings of the Labour Court where a party failed to attend her disciplinary hearing by linking up. She was Zoomed out of a job.

Written by Dr Hilda Grobler, Director of Aequitate Dispute Resolution Services (Pty) Ltd, for LexisNexis South Africa

Zoomed out of a job

If there was any doubt that an employer may conduct a disciplinary hearing on a virtual platform at a time determined by it, that doubt has finally been shattered by the Labour Court.

The decision in the matter ofMokoena v Merafong City Local Municipality and Another (handed down on 24 August 2020) has made it clear that such a hearing is valid even if the employee fails to attend.

Ms Moekoena was dismissed from her job as a municipal manager when she failed to attend her disciplinary hearing which proceeded via Zoom.

Following her suspension, she managed to secure no less than four postponements by handing in sick notes at the last minute.

When informed a year later that her disciplinary hearing would proceed via Zoom, and despite the fact that all arrangements were made by the Municipality to ensure that she had the necessary devices and data to link up, she failed to do so.

In the circumstances the chairperson proceeded with the hearing in her absence and found her guilty on 11 of the 12 allegations of misconduct she faced.

Unhappy with the Municipality’s decision to dismiss her, she brought an urgent application in the Labour Court, seeking a declaratory order that the finding against her was invalid, unlawful and of no force and effect. She submitted that the hearing should not have proceeded in her absence given that she had connectivity problems.

As Ms Mokoena had accused the chairperson of “arrogance or having acted in an irrational and unlawful manner”, both the chairperson and the Municipality opposed the urgent application.

The court, per Tlhotlhalemaje J, did not come to her rescue. Quite the contrary. Given that she was familiar with the use of a virtual platform, and had refused to use the laptop and cell phone provided by the Municipality’s IT officer who was in attendance at her home to assist her, the court held that she had “deprived herself of the right to be heard, and an opportunity to defend herself against the allegations of misconduct preferred against her”.

The court concluded that her behaviour on the day was “the culmination of the obstructive conduct” she had displayed all along when she “had done everything in her might, and as ably assisted by her legal representative, to avoid and obstruct the commencement, continuation and conclusion of the disciplinary proceedings”.

The court not only dismissed the urgent application, but also ordered her to pay the Municipality and the chairperson’s legal costs after finding that she “ought to have seriously reflected on the folly of this application” but failed to do so.

The importance of this judgment is that the Labour Court could not fault the Municipality’s decision to proceed via Zoom, and in the absence of the employee when she failed to link up to attend the disciplinary hearing.

Dr Hilda Grobler
Director of Aequitate Dispute Resolution Services (Pty) Ltd

Related articles in the series:

Part 1: The SCA and the High Court refuse to tolerate objections to virtual hearings

Part 2: Virtual consultations are valid

Part 4: Virtual hearings are here to stay