“Conducting a disciplinary hearing is within the space of managing the employment relationship, and your sick leave policy will apply accordingly,”
Julia Yeo, employment law specialist at Clyde & Co Clasis Singapore told
HRD.
Depending on your sick leave policy, the employee should produce the relevant medical certificate to support the absence.
If one is produced, the disciplinary hearing will unfortunately have to be rescheduled, Yeo said.
What is essential, Yeo emphasised, is the guiding principle of treating the employee fairly.
“The rules of natural justice apply to a disciplinary process. One of the key principles is the need to give the employee a fair opportunity to be heard and respond – even a Court of law will adjourn a hearing if a witness has a valid reason for his absence,” Yeo explained.
If the employee is provably ill, the disciplinary hearing should be adjourned to a time when they are likely to be well enough to attend.
However, if meeting the employee in person is challenging, HR can explore other methods of conducting the hearing, Yeo explained.
“If for whatever reason a physical hearing is no longer possible, the employer is not restricted from exploring other ways of conducting the hearing, for example, through video conferencing, Skype or even written deposition (if necessary) – the principle being always to allow the employee a fair opportunity to be heard.”
But what if it becomes clear that the worker’s illness is an excuse to avoid the disciplinary?
In that case, Yeo said: “It is open for the employer to give a final notice that the next hearing will proceed whether or not the employee is present, and the disciplinary sanction will be meted out accordingly.
“In any event, the employee should still have a right of appeal against the disciplinary decision taken.”
Ultimately, a disciplinary hearing that is undertaken without giving the employee sufficient advance notice or warning or opportunity to be heard, runs the risk of being challenged as unjust and can support a case for constructive dismissal.
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