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Davies Ndumiso Sibanda Labour Matters
Despite having come into effect in 2006, many employers still struggle to administer the National Code of Conduct and survive, arguing that failure to follow procedure should not be grounds to dismissal of their cases as long as it is fatal but courts should hear merits as well.
First, I am of the view that the famous case Danly Mine vs Musa Banda SC 39/99 is either not correctly read or deliberately being abused.
Reading the judgment properly, it did not give employers a licence to breach procedure and did not also give arbitrators and judges of the lower courts freedom to decide whether to dismiss appeals based on procedural irregularities.
Reading carefully the judgment it still preserves the need for procedural fairness to be observed in order for the playing field to be levelled and there is justice.
I will look at the judgment in detail later but today’s focus is on the National Code of Conduct procedures.
One of the most confusing areas for the employer, is setting up a disciplinary committee.
The Code of Conduct expresses that there must be an agreement at Works Council on setting up the disciplinary and appeals committee if the employer chooses the committee route.
The code allows the disciplinary hearing to be presided over by one person meaning that where the disciplinary authority is one person no other person must participate in the hearing.
Only a secretary to construct the record should be there.
The complainant and defendant should present their cases assisted by representatives and witnesses if any and leave the disciplinary authority to do the same.
Where a committee is used, the disciplinary committee must be composed of employer and employee representatives.
The choice of employee representative legally rests with the workers’ committee and the defendant only chooses his representative as guided by the regulations.
Representation restriction is a tough subject to challenge as it seems unconstitutional in terms of the new Constitution.
Many employers struggle with disciplinary on managerial employees, especially when the most senior person in the organisation is the complainant, the Code is silent on what happens.
There are two routes, the first option is for parties to agree for an outside independent person to chair the hearing and whoever is unhappy with the outcome appeals to the labour officer in terms of section 93 of the Labour Act.
This means there will be no internal appeal.
There is however a cost involved as the chairperson and the secretary might have to be paid.
The other route is to charge the employee and remit the matter to the labour officer for the matter to be dealt with in terms of section 93.
This process must be accompanied by a letter detailing why a hearing cannot be conducted internally.
Another problem with the administration of the National Code of Conduct on managerial employees is that in many cases, by the time the disciplinary authority is appointed, most managers will have been contaminated by the case such that they are no longer fit to hear it.
In conclusion, while the National Code of Conduct is a few pages, it takes a lot of time to train managers on using it correctly and employers should not let untrained managers preside over cases as that could prove very expensive when decisions made are overturned.
Davies Ndumiso Sibanda can be contacted on: email:[email protected] or cell No: 0772 375 235
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