adminLabour Column Davies Ndumiso Sibanda
THE process of discipline handling continues to be problematic for many employers as they fail to observe principles of natural justice and critical procedural issues.
Many employers wrongly believe that when the Supreme Court said labour cases cannot be dealt on procedural issues alone as there is a need to look at the merits of the case, then procedural issues are no longer important.
This is wrong reading of the law as the same Supreme Court has said where procedural issues are violated to an extent that an employee is prejudiced, then the matter will fail on grounds of failure to follow procedure.
Only trivial failures to follow procedure will be condoned by the courts as long as nobody is prejudiced.
In the light of what the law says, employers have to ensure that all legal requirements of the code of conduct are followed. If there are forms which form part of the code of conduct, failure to fill them in correctly is a breach of procedure which could have a material effect on the case resulting in one of the parties being prejudiced.
For example, where the form requires the employee to sign to acknowledge receipt of the complaint form and allegations against him, he must sign after the allegations have been given in detail in the form so as to be able to prepare his defence.
Failure to do so could result in the employee denying he was ever given the charges and the employer will be at pains to explain himself since there is no evidence that the employee was given the allegations.
Where the code of conduct requires that there must be two members of the workers’ committee who are part of the disciplinary hearing, the employer must be clear in that he has no choice but to make sure that the workers’ committee appoints those two people.
He can’t choose them himself and neither can they be chosen by the defendant. Further, during the hearing, the worker representative who sits as part of the disciplinary committee must clearly play an adjudicative role where they jointly search for the truth and apply the law without any bias like all other members of the disciplinary committee.
Important issues of using appropriate code, mitigation, making closing submissions by parties are important procedural issues which cannot be ignored.
However, it is common for employers to ignore these and only to be directed by courts at a huge cost to observe them.
Many cases today are lost at a huge cost and in some instances running into hundreds of dollars.
This is because employers do not follow simple procedures that are set out in the code of conduct and elsewhere in labour legislation.
For example, some do not have a quorum in a hearing, some lack clarity and others are outright non-compliant with the law as no code of conduct provisions would have been followed. In conclusion, what employers need to know is that a code of conduct is a legal document where only a third of application requirements are documented and two thirds have to be acquired through training.
Things such as critical case law, common law issues, principles of natural justice, evidence gathering, procedural and substantive fairness and decisions on cases of balance of probabilities can only be learnt by managers and workers leaders through training.
Searching for their meaning on internet is not good enough. Employers just have to invest in discipline training for managers and workers leaders.
And in addition seek expert advice for complex cases.
Davies Ndumiso Sibanda can be contacted on:
email: [email protected] Or cellphone No: 0772 375 235
Online Reporter