We have an employee who failed to attend a disciplinary hearing. May we proceed to consider the matter in his absence? 

Posted in : First Tuesday Q&A ROI on 1 November 2016
Zelda Cunningham
Arthur Cox
Issues covered:

It is generally deemed to be unfair to continue with a disciplinary process in the absence of the employee in question. Employees in a disciplinary process should be afforded the opportunity to put forward submissions in their defence and a sanction imposed on an employee in the absence of such an opportunity could be overturned by the Workplace Relations Commission on grounds of fair procedure, if the employee challenges the sanction.

However, if, despite repeated requests and warnings that the disciplinary process will proceed if without the employee if he does not attend, the employer may be in a position to proceed with the disciplinary process without the employee's involvement.

Before proceeding, the employer would be required to explore the reason for the employee's failure to attend. For example, the employer should confirm it has the correct contact information for the employee. It should attempt different methods of contacting the employee - e.g. by email, telephone and registered post.

If the employee has refused to attend the disciplinary hearing for a specific reason, the employer should explore and attempt to resolve these issues.  Examples of why an employee may not attend could be that he/she is asserting that the decision maker is bias against him or/her or that his/her representative cannot attend the meeting for a specific reason.

Furthermore, if the employee is on certified sick leave, the employer will be expected to wait until the employee has been certified as fit to attend the disciplinary hearing by the company doctor before proceeding.  Similarly, if the employee is on pre-booked annual leave, it would be expected that the employer would wait until he/she returns before proceeding with the disciplinary meeting.

If it is simply the case that the employee refuses to attend the disciplinary meeting, this could be a disciplinary matter in and of itself – as an employee is expected to follow the reasonable directions of his/her employer. The employee should be advised that his/her continued non-attendance at the disciplinary meeting is potentially a disciplinary matter.

If the employer has made all reasonable efforts to identify and address the concerns of an employee and has made several attempts to invite him/her to the disciplinary meeting, the employer may be justified in proceeding with the disciplinary hearing in the absence of the employee. Proceeding with the disciplinary meeting in the absence of the employee would only be considered to be reasonable in very exceptional circumstances of continued non-cooperation on the part of the employee.

If a sanction is imposed on the employee following the disciplinary hearing, the employee should be invited to appeal that decision, in accordance with usual fair procedures.

Back to Q&A's This article is correct at 01/11/2016

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Zelda Cunningham
Arthur Cox

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