Chronicle EditorDavies Ndumiso Sibanda
MANY workers who argue unfair dismissal usually allege the employer failed to follow procedure and lose cases because not all cases of failure to follow procedure can lead to nullification of a dismissal.
The law on failure to follow procedure in disciplinary cases is not always fatal. Courts generally frown upon arguments related to failure to follow procedure unless the failure to follow procedure resulted in prejudice.
One would have to prove that he was prejudiced by the employer’s failure to follow procedure for allegations of failure to follow procedures. However, even in cases where prejudice is proved, the court might decide that sending the case to be heard afresh does not serve any purpose and in the interest of justice, evidence to cure the defect might be led thus allowing the case to be dealt with on merits to its conclusion.
Many workers with hopeless cases substantively make appeals against dismissal on points of law in order to buy time and increase the period they are paid until the employer follows procedure. This approach is very risky as in the event the points of law are considered immaterial and facts are against the worker the courts may order payment of costs against the worker. We find dicta in the matter Madondo vs Conquip Zimbabwe Judgment Number SC 25/16 where the Supreme Court said, “Due to wasting the court and the employer’s time and putting the employer into a cost, the appellant is ordered to pay the costs”. These costs are generally not cheap but could result in the worker losing lifetime investments.
Further, the Supreme Court has said that a person who is guilty of misconduct should not escape the consequences of his misdeeds simply because of a improperly conducted disciplinary hearing. He should escape because he is innocent. This was said in the case Chitembo vs Bindura Nickel Corporation LTD SC 35/15. In my opinion, this is a very strong statement to those whose cases are sitting on arguments around procedural irregularities while the facts are against them.
Unless the employer’s failure to follow procedure is so outrageous that it defies logic how it was arrived at, there is no point in sticking to arguments related to procedural irregularities. For workers in particular, the lessons from these cases and many other similar cases, it is now very clear that arguments around failure to follow procedure in many cases are unlikely to help. For example, these judgements are not a licence to ignore procedure.
I am of the view that if courts establish that failure to follow procedure was deliberate, the employer could be ordered to reinstate the employee and follow procedure. In conclusion, parties should not overly concentrate on procedural arguments as courts are likely to go beyond procedural issues and decide cases on merits and parties should avoid appealing hopeless unwinnable cases substantively as they could find themselves saddled with ruinous costs.
Davies Ndumiso Sibanda can be contacted on: email: [email protected]; or Cell No: 0772 375 235.
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