adminTaurai Musakaruka HR Issues
The chairman must first establish that a fair procedure has been followed by the employer and that the accused has not been compromised or prejudiced by any unfair actions on the part of the employer. This can be achieved through an examination of the entire process, from the original complaint to the adjournment of the disciplinary hearing.
This is critical as it will count if the matter ends up at the courts. The chairperson must not even think about “guilty or not guilty” before it has been established that a fair procedure has been followed.
If a fair procedure has been followed, then the chairperson can proceed to an examination of the evidence presented to establish guilt or innocence.
If guilty is the verdict, the chairperson must now decide on a sanction. They must consider several facts in addition to the evidence, such as length of service, previous disciplinary record and personal circumstances.
They should also consider whether the sanction of dismissal would be consistent with previous similar cases, circumstances surrounding the breach of the rule, age-retirement, position in the company, financial position, does he show any remorse and if so to what degree and so on.
The chairperson must also consider all the extenuating circumstances (circumstances such as self defence, provocation, coercion — was he “egged on” by others?
The chairperson must also consider all the aggravating circumstances (those circumstances that count against the employee, such as the seriousness of the offence seen in the light of the employee’s length of service, his position in the company and the degree of trust that exists in this employment relationship.
They should look at the following elements of substantive fairness — is my reason good enough to justify dismissal? Was a company rule or policy or behavioural standard broken? Was the employee aware of the transgressed rule, or policy or could the employee be reasonably expected to have been aware of it? Has this rule been consistently applied by the employer?
The chairperson must allow the employee to plead in mitigation and must consider whether a lesser penalty would suffice.
Only after careful consideration of all this, can the chairperson arrive at a decision of dismissal and be perfectly satisfied in their own mind that the dismissal is being effected for a fair reason.
The “Hearing rule” should be religiously followed, that is the person concerned has a right to an opportunity to reply in a way that is appropriate for the circumstances; for their reply to be received and considered before the decision is made and to receive all relevant information before preparing their reply.
However, in most disciplinary hearings chairpersons count their chickens before they hatch. It all too frequently occurs that employers conspire to get rid of employees despite the absence of genuine evidence of the employee’s wrongdoing.
The employer does this for a wide variety of reasons which in reality are not just unethical, but illegal. They may just dislike the employee for reasons unrelated to the workplace e.g. the manager is aware that the employee, who goes out with his daughter belongs to a bad gang and then fires the employee for refusing to leave his daughter alone.
It can also be a managing director who wants a more attractive and young secretary and creates a story simply to get rid of the current personal assistant simply because she is perceived to be unattractive or very old.
Innocent employees may fall victim because they are unwilling to grant their superiors sexual favours or the employee has clashed with a key executive who has threatened to resign, (the “its either I go and you remain with him or he has to go” mentality).
The manager may be under pressure to perform and uses the dismissed employee as the scapegoat for performance problems or the employer feels that it is time that he shows the workers who is the boss and picks on the first employee who makes a mistake, muscle flexing.
Employers then conspire to get rid of such undesirables through the use of a number of tricks including firing the employee orally and then pretending that the employee absconded.
It can be framing the employee for poor performance or misconduct; provoking the employee into committing misconduct e.g. in a mine compound , the supervisor then insults a subordinate or just provoke him in a bar and gets a thorough beating; setting up a disciplinary hearing where the presiding officer has been primed in advance to fire the employee (“please show him the exit”) and so on.
This trick clearly renders the presiding officer biased. This constitutes a serious breach of the employee’s right to fair procedure.
Where the employer is caught out using such a biased presiding officer, our courts usually have no mercy.
The employee is likely to be reinstated with full benefits or get hefty package (punitive damages) in lieu of reinstatement.
The Labour Act Chapter 28:01, Amendment Number 7, (2005) has also dealt with the issue in s89 (2) (c) proviso (iii) specifying that: “Should damages be awarded instead of reinstatement as a result of an untenable working relationship arising from unfair, unlawful or wrongful dismissal by the employer punitive damages may be imposed.”
In Zupco v Chisvo (1999) ZLR 67 (S) McNally JA, said “the quantum of damages should be sufficiently high to suggest to the employer that reinstatement is the more appropriate and equitable alternative”.
Similar sentiments were echoed in Ambali v Bata Shoe Co. Ltd and BHP Minerals Zimbabwe (Pvt) Ltd v Takawira 1999 (2) ZLRm77(S).
Therefore, a biased hearing officer may make you happy now but you will fume later as this will cost you money as time progresses.
Such bias on the part of a disciplinary hearing chairperson can be discovered in a number of ways including where: the chairperson grants the complainant (person representing the employer) the opportunity to obtain more evidence, take adjournments or interrupt the employee, but does not grant the employee similar rights.
The presiding officer may deliberately ignore evidence brought by the employee or the chairperson is chosen to hear the matter despite having been the one who caught the employee breaking the rule, (Fawu obo Sotyatu vs. JH group Retail Trust (2001, 8 BALR 864).
The bias may be seen if the chairperson says things early in the hearing that indicate that he has decided in advance that the employee is guilty.
For example, in the case of Fourie & Partners Attorneys obo Mahlubandile vs. Robben Marine cc (2006, 6 BALR 569), the employee was dismissed for attempting to remove several frozen chickens.
He had hidden these chickens in a bucket. The arbitrator accepted that the employee was guilty of the offence but still found the dismissal to be unfair.
This was primarily because the chairperson of the disciplinary hearing had revealed his bias by asking the employee at the beginning of the hearing, “Do you have an excuse for stealing the chickens?”
It is advised therefore that presiding officers must always be unbiased. The fact that arbitrators do not hesitate to punish biased or inept presiding officers means that employers should: resist the temptation to “fix” the outcome of disciplinary hearings in advance.
They should also avoid misusing disciplinary processes to pursue private agendas and ensure that only impartial and properly trained persons chair disciplinary hearings.
One important reason an employer would not want a biased hearing officer is that she/he can cost the employer time and resources.
A biased hearing officer may make decisions based on their feelings, resulting in unfair treatment of the employee, which could lead to monetary damages or a plethora of suits being filed.
This will take up valuable time for productivity of supervisors or other witnesses involved in the matter. Moreover, conducting disciplinary hearings chaired by a biased hearing officer may cause employees to distrust management and affect employee morale.
Therefore, if possible, it is preferable to use someone who was not involved in recommending the investigation that led to the disciplinary hearing.
Disclaimer: I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The views contained herein are personal.
Taurai Musakaruka is Human Resources Practitioner. Feedback -e-mail to [email protected].
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