Chronicle Editor
Davies Ndumiso Sibanda, Labour Matters
MANY employers struggle with management of disciplinary hearings postponement by employees and end up paying a huge price for granting the postponements.
Workers will request for postponements of disciplinary hearings where they have a genuine reason for not attending.
However, in the majority of cases the request for a postponement will be for strategic reasons by representatives who can be trade unionists, labour consultants or lawyers.
For the employer to be in control of a disciplinary hearing and effectively manage postponements, the starting point is having a code of conduct which allows for suspension with or without pay and benefits.
Where the code of conduct allows for suspension without pay and benefits, it is safer to suspend without pay and benefits for an employer. However, most workers committees will not agree to the registration of a code of conduct which allows for suspension without pay in all instances.
Where an employee is suspended with pay and benefits the employer should be certain that the suspension is procedural, the reasons for suspension are substantially legal in terms of the code of conduct, those who will administer the hearing are properly trained in discipline handling and during the hearing they stick to procedure and they do not violate the principle of natural justice.
The hearing should be conducted and concluded within set time-frames. Failure to do so will give the worker representative many opportunities to delay the conclusion of the hearing while the employee continues to draw a salary.
It must be noted that once a decision to suspend with pay and benefits is made, the employer cannot alter it along the way.
Requests by employee representatives of hearing postponement are very common especially where the employee is suspended with pay and benefits. In the majority of cases, when a representative realises that the employee’s case is not winnable, he or she will extend the period of the employee continuing to earn a salary through varied postponement strategies.
One of the most problematic ones for employers is where an employee on suspension presents a sick leave note claiming to be sick.
In such circumstances, there is not much an employer can do other than writing the doctor to confirm the sick leave note and asking that the patient be also seen by a specialist doctor including the company’s own doctor.
Most companies today in their policies have a clause which allows company doctors to attend to sick employees for a second opinion to safeguard against abuse of sick leave when there is a disciplinary hearing pending.
There are also occasions where the suspension of the employee is legally defective and the representative knows that what the employer did is illegal, representatives may postpone the hearing and apply for a review of the employee’s conduct at the Labour Court and in worse cases, the worker might get an order stopping the proceedings until the matter is heard at the Labour Court.
When that happens, it becomes problematic for the employer as it now requires legally trained minds to navigate through the legal minefield which would have been laid.
When an employee applies for a postponement, one of the best ways out of the situation is to proceed into the hearing and evaluate reasons for the postponement.
If they are not satisfactory, proceed with the hearing. Where the representative is a legal practitioner who claims to be at a superior court at the same time, its wise to advise that the hearing will proceed unless proof of appearance of superior Court is deposited with the employer before the set down time.
The proof can be in the form of any document stamped by the relevant court showing the representative is committed there or from the relevant NEC.
However, in some circumstances, there is no need for that harsh approach as the employer will also request for postponement at times.
Parties can mutually agree on an alternative date and also agree that the hearing will proceed without any further postponement.
This turns to be a non-confrontational approach and helps build a long-term relationship between the parties.
Where an employee asks for a postponement and is told there is no further postponement, the hearing may proceed without the employee.
This position was set in the matter Zesa enterprises where it was held that the ‘Right to be heard’ is not absolute immutable rule of law. It can be waived and forfeited where the beneficiary is at fault.
By absenting himself from the hearings the employee irrevocably waived his right to be heard. Disciplinary Committee was within its rights to proceed without the employee.
The court said, “In light of his deliberate default from the hearing, the Disciplinary Committee was within its rights in proceeding with the hearing in his absence as previously advised.
“The respondent cannot be heard to complain when he deliberately absented himself from the hearing with the full knowledge that the disciplinary hearing was going to proceed in his absence. He voluntarily elected not to attend the hearing. He has no one to blame except himself, volenti non fit injuria. (If you place yourself in the way of harm you cannot bring a claim against the other party).”
In conclusion, where employers are not sure about postponements and how to handle them, they need to seek expert advice before doing so.
Davies Ndumiso Sibanda can be contacted on: Email: [email protected]
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