The ManicaPost
Trust Maanda
Post Correspondent
AN employee in a disciplinary hearing has a right to a fair hearing.
He or she has a right to be heard in defence of the charge and allegations raised against him or her.
He or she has a right to cross-examine witnesses testifying against him.
An employee has a choice to utilise the opportunity by being present at the hearing and giving evidence in defence of himself or herself.
If an employee decides to absent himself or herself from the proceedings, by either not attending or walking out of the proceedings, he or she is deemed to have waived their rights to be heard.
In Forestry Commission v Moyo 1997 (1) ZLR 254 (S), the court discussed the effect of walking out of a disciplinary hearing and remarked as follows:
“The second and alternative ground, as I understand it, was that the respondent ought to have been afforded the opportunity to be heard even though he had walked out of the inquiry. I am unable to agree . . . His exit indicated that he had no intention of participating in the inquiry. He took a calculated risk that it would proceed without him. There was, in my opinion, no obligation upon the investigation panel to postpone the hearing and call upon the respondent to appear at another date. The audi alteram partem rule was not violated.”
An employee ought to be cognisant of the fact that the disciplinary tribunal in the matter is set up to investigate his or her matter on all issues which relate to his or her alleged acts of misconduct.
If he or she has an issue with any issue in the proceedings, the employee should challenge that before the hearing tribunal. If the employee is given an opportunity to represent himself or herself and prove his or her defence before the tribunal and decides to be absent or walk out of the tribunal hearing, he or she cannot be heard to challenge the evidence that was led in the proceedings.
From the case law, authorities and employee’s actions of walking out of the hearing amounts to a waiver of his right to the audi alteram partem rule.
This rule is the rule of natural justice that requires that the tribunal should hear the other side.
Where the employer gives adequate opportunity to the employee to make his or her defence, but the employee decides to waive that right, the employer cannot be blamed if proceedings are held in his or her absence.
The right to a fair hearing before one’s dismissal is an integral part of our law.
This right is explicitly recognised by the law, and has been restated in numerous decisions of the courts.
However, it is open to the employee to attend or to refuse to attend the enquiry.
Should the employee refuse to attend the enquiry, such employee must be prepared to accept the consequences thereof, one of which is that the enquiry will proceed in his absence and adverse findings may be made, and where they are so made, the employee would have no right to challenge it.
In Masvikeni Vs National Blood Service Zimbabwe SC 28/19, an employee did not attend the disciplinary hearing.
He had also not responded in writing to the allegations against him before he was charged and invited to a disciplinary hearing.
He sought to challenge the decision on many bases including challenging the composition of the committee.
The court said for the reason that he absented himself, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him.
Such objections could only have been raised at the disciplinary hearing which he opted not to attend.
The principle was explained by the court in the case of Moyo v Rural Electrification Agency SC-4-14 when it said: “In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings.”
An employee deprives himself or herself of the right to a fair hearing by walking out of the disciplinary hearing.
If he or she comes to court to seek the right to be heard after he or she walks away, it is like he or she seeks to enforce the right on his or her own terms, in prescribing how the hearing should commence and directing his or her own process.
An act of walking out is contemptuous of the disciplinary tribunal and has adverse legal consequences.
If an employee is not happy with an issue during the proceedings, rather than walk out, he or she should raise the issue for the record and proceed with the hearing.
He or she can then challenge the proceedings later on review or appeal.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646
