Handling grey areas in Codes of Conduct

Davies Ndumiso Sibanda, Labour Matters
MANY Codes of Conduct have grey areas, which are difficult to decide on what is right and what is wrong resulting in a lot of conflict between complainants and defendants during disciplinary hearings.

While the Supreme Court has accepted legal imperfections of Codes of Conduct as they are crafted by ordinary employers and workers with no legal training, there is still a need for Codes of Conduct to observe principles that relate to fairness and justice as enshrined in our Constitution.

Almost all Codes of Conduct have gaps that have to be filled through training of managers, supervisors, worker representatives and trade unionists.

For example, on procedure, may Codes of Conduct lack clarity on who chairs the disciplinary committee between worker representatives and employer representatives.

I have seen cases where worker representatives who are part of the disciplinary authority demand to chair the hearing arguing the Code of Conduct is silent on who chairs. In such cases we resort to Common Law which places the responsibility for discipline on the employer, thus the chairing and the casting vote, if any will rest with the employer representative.

Further, the Supreme Court has said the role of the worker representative in a hearing is to ensure fairness and even if they walk out during the hearing and the hearing continues in their absence, there is nothing wrong to continue with the hearing as long as the hearing remains fair. The argument around lack of quorum would not stand the legal test.

Many arguments have arisen around roles of different players in the Code on Conduct. For example, many Codes of Conduct expressly provide for representation of an alleged offender but are silent on representation on the complainant.

We then resort to Common Law which provides for representation for both parties from a fairness perspective, given that a Code of Conduct is not capable of extinguishing a Common Law position as only an Act of Parliament can do so.

Another grey area is the presence of the complainant in the hearing. At Common Law, without the complainant, there is no disciplinary case.

The complainant has to attend the hearing and present allegations against the defendant personally or through a representative of choice.

Where the complainant is not in attendance but has only made a report, and aspects of the report are challenged, the assumption is that the defendant is telling the truth as they will be no one to buttress the allegations.

Some Codes of Conduct are badly crafted in some sections. A classic example is the Mining Industry Code of Conduct where the hearing structure section wording causes confusion to those who are not legally trained in interpretation of statutes.

It reads, the complainant and the offender must attend the hearing in person. The hearing shall be conducted by the administering official together with up to two workers representatives and up to two employer representatives provided that the representatives shall be equal at all times.

These shall constitute the disciplinary committee for the hearing. The choice of worker representatives shall be entirely at the discretion of the offender and may include workers committee representatives, trade union representatives or such other person or persons acceptable to the offender:

While at the beginning it gives who makes the disciplinary committee, it does not clearly say who is the workers representative and who chooses the workers representative.

In the last sentence, on the choice of worker representatives, confusion is thrown into the definition as the code does not say whether these representatives are those who form the disciplinary committee or those who represent the offender.

It now calls for interpretation of statute skills to see that the representatives who are part of the disciplinary committee are chosen by the workers committee as the workers committee and the worker representatives mentioned in the last part are those that represent the alleged offender, as reading the statement, it covers other persons acceptable to the offender and those cannot be part of the disciplinary committee. Further, there is a legal principle that says the alleged offender cannot choose his/her own judges.

There are many Codes of Conduct with such challenges. Mainly those that were crafted in the early 90s when we were going through a learning curve in the crafting of Codes of Conduct.

In conclusion, Codes of Conduct have many grey areas that have not been covered in this article and no Code of Conduct can anticipate all of them and as such, the crafting of Codes of Conduct should be done by human resources experts and implementers must be fully trained in discipline law.

Davies Ndumiso can be contacted on:
Email: [email protected].