The ManicaPost
Trust Maanda
Post Correspondent
IN holding disciplinary proceedings against an employee, the employer must stick to all the requirements of procedural and substantive fairness.
The procedure may be in terms of a Code of Conduct that exists between the employer and employees or in terms of the rules of natural justice.
The employee must be given adequate notice of hearing and accorded all the rights to a fair hearing.
The hearing must be in accordance with the rules of natural justice.
There must be no bias.
The rules of natural justice require that the disciplinary tribunal acts according to common sense principles of fairness.
If a Code of Conduct provides for the composition of the disciplinary committee or authority, that has to be adhered to.
In Unifreight Limited V Lighton Madembo Supreme Court 6/18, an employee was charged for misconduct.
The disciplinary committee found him guilty and decided that the appropriate penalty was to dismiss him.
He was dismissed with immediate effect. He appealed against this decision to the Executive Director of Personnel and Training, and in his appeal he queried why in the disciplinary hearing before the disciplinary committee there were no representatives from the workers’ committee present in accordance with their code.
The Executive Director of Personnel and Training concluded that the determination of the committee was correct.
The employee further appealed to the Labour Court alleging gross procedural irregularities which he believed should result in the setting aside of the decision of the disciplinary hearings.
He argued that the hearing was not properly constituted as the chairman of the disciplinary committee was also the complainant who further served as the minute taker.
The employer failed to produce the record of proceedings.
He argued further that in the absence of a representative of the workers’ committee, the hearing was not properly constituted.
The Labour Court was dissatisfied with the failure by the disciplinary committee to transcribe proper minutes and ruled that the double role performed by the chairman compromised his impartiality as he had to be both the complainant and adjudicator.
On this basis, the Labour Court ordered the remittal of the matter to be heard afresh by the disciplinary committee in a procedurally correct manner within 30 days of the order and, pending such hearing, the employee was to revert to suspension, but with pay.
The employer appealed to the Supreme Court on whether the procedural irregularities in the disciplinary hearing were so serious as to warrant the setting aside of the determination of the hearing committee.
The Supreme Court ruled that most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded.
No accurate minutes of the disciplinary hearing were kept by the employer.
The committee was not properly constituted as it comprised of only two disciplinary officers, one of whom was the chairman who also asked questions on issues of concern to the employer.
The role of the chairman went beyond that of an inquisitorial authority.
He became a party to the proceedings.
The dual role played by the chairman as both chairman and complainant was regarded by the court as wholly inappropriate and not in line with the principles of natural justice.
His impartiality could in these circumstances not be seen to exist.
He became a judge in his own cause and failed the test of impartiality.
A disciplinary committee must be comprised of representatives of the employer and employees.
This was not the case during the hearing.
The employee was clearly prejudiced by the irregularities.
The test for bias appears to be whether the person who is being challenged has associated himself with one of the two opposing sides that there is a real likelihood of bias or that a reasonable person would believe that he would be biased.
Once a charge of misconduct is preferred against an employee, there is always a certain element of institutional bias, as the employer is the offended party.
The chairman cannot therefore participate in a role to which he is appointed by the employer and remain impartial as the presiding officer in the hearing.
As a general rule, it is undesirable that labour relations matters should be decided on the basis of procedural irregularities.
In Nyahuma v Barclays Bank of Zimbabwe Supreme Court 67/05, the court held as follows:
“. . . it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”
The onus is on the aggrieved party not only to show that there are procedural irregularities, but that he or she was prejudiced thereby, in a manner that vitiates the proceedings impugned.
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 +263 772432646
