Discipline law, the cost

Davies Ndumiso Sibanda, Labour Matters
MANY employers wrongly assume termination of an employment contract is the easy way out of an employment relationship and after dismissal of employee, they end up facing protracted legal battles.

When a dispute arises between an employee and the employer or when the employee no longer fits into the strategic direction of the organisation, there’s a need to do a proper evaluation of legal options available and each option has to be evaluated for cost effectiveness, business prudence, labour relations appropriateness and legally correctness.

Organisations should understand that managers, supervisors and workers committee members, who from time to time participate in disciplinary hearings, are not formally trained in discipline law.

As such, getting them in handling disciplinary cases without appropriate training could easily result in long drawn litigation and loss of disciplinary cases at a huge cost.

I have attended and at times presided over cases where parties are ignorant of discipline law resulting in expensive decisions.

I recall a case where an employer dismissed a Fixed Term Contract worker in the Commercial Sector. The worker had been on Fixed Term Contract on seven occasions.

The worker filed a case of unfair labour practice arguing that he had been terminated before the expiry of his Fixed Term Contract and he further argued that he was a permanent employee.

When the matter came before the Designated Agent, the employer was advised that the offence by the employee is not dismissible in terms of the Code and that the employee was permanent from the time he entered a 6th Fixed Term Contract.

When the worker got back to work, 65 other employees on Fixed Term Contract who had served more than six Fixed Term Contracts, declared themselves permanent and refused to sign Fixed Term Contracts.

This was a huge cost for the employer as he now had 66 employees who were permanent by default, a result of choosing a wrong method of terminating a contract and evidence of ignorance of how Fixed Term Contracts can be managed.

Employers should not take workers for granted when it comes to discipline, as many workers have indirect capacity to litigate, they can put up brilliant legal and factual arguments and get expert representation which an untrained disciplinary authority will be unable to handle.

Simple arguments around points of law, substantive issues and interpretation of terms can confuse the disciplinary committee into messing up a simple case.

Many managers and supervisors do not read the Code of Conduct, even if they read it, they do not understand it and further, they are unable to read into the Code of Conduct’s unwritten common law issues which get picked up by external codes.

Without exposure to key discipline law, decided cases and key aspects of the Labour Act Chapter 28:01, discipline handling will remain problematic for disciplinary authorities, moreso, in this environment where discipline law knowledge is readily available on internet and other sources.

In conclusion, employers have to invest in training all those who handle discipline on how to administer the appropriate Codes of Conduct and management of discipline in a manner that enhances productivity improvement.

Davies Ndumiso Sibanda can be contacted on: [email protected]