daniel chigunwe
Athur Marara
In my previous article, I shed light on the critical issue of unfair dismissal and its widespread repercussions for companies.
Today, I aim to delve deeper into the imperative of conducting hearings in a fair, procedural, and agile manner.
Unfair dismissals have not only tarnished the reputation of numerous businesses but have also inflicted substantial financial burdens upon them.
It is high time for us to address this issue by ensuring that both procedural fairness and substantive fairness are upheld during such proceedings.
This article is specifically tailored to cater to two groups of individuals: those responsible for conducting disciplinary hearings and those who find themselves navigating through the complex terrain of such proceedings.
For individuals tasked with overseeing these hearings, it is vital to adopt an agile approach in order to maintain transparency, accountability, and efficiency throughout the process.
Those conducting disciplinary hearings can ensure that every step is taken in a timely manner while incorporating feedback from all relevant parties.
This approach can help minimise delays, improve communication, and mitigate any potential negative consequences that may arise from unfair dismissals.
For individuals facing the daunting prospect of a disciplinary hearing, it is crucial to have a thorough understanding of their rights and responsibilities.
This includes being aware of the principles of procedural fairness, such as the right to be heard, the right to present evidence, and the right to a fair and impartial decision-maker.
By knowing and asserting their rights, individuals can actively participate in the process and safeguard their interests.
The prevalence of unfair dismissals presents a significant challenge for both companies and employees alike.
By emphasizing the importance of conducting disciplinary hearings in a fair, procedural, and agile manner, we can work towards minimising the negative impact of such dismissals.
It is crucial for all stakeholders involved to actively engage and collaborate, ensuring that everyone’s rights and interests are safeguarded throughout the process. Let us strive towards a fair and just future for all.
Use the right code of conduct
The last article spoke to this fundamental point. Whenever I am handling a disciplinary matter that is what I look at. If the code of conduct is wrong that becomes a preliminary point that can be taken during the hearing of the matter.
Ensure that the correct code of conduct has been used to charge an employee. This is important for every employer to observe.
The High Court of Zimbabwe had the opportunity to pronounce on this point in the case of Tagarirofa v Nhedziwa High School Development Committee (HMT 23-20) where Justice Muzenda had the following to say: “…I agree with the applicant that once the respondent used the wrong statute and or wrong code of conduct, the subsequent proceedings are nullity.
The proceedings were not in accordance with the due process of the appropriate legislation applicable to the dispute in question. SI 15 of 2006 would only apply where there is no applicable code of conduct.”
Fairness of the dismissal starts with the procedural fairness. Did we use the right code of conduct? Did we follow the code of conduct in terms of what it says in conducting the disciplinary proceedings. In the above cited matter the proceedings were set aside for using the wrong code of conduct.
The charges must be provided for in the Code
There is excitement on the part of some Human Resources people to tend to invent charges that are not provided for. It’s either the offence exists in terms of the applicable code or it does not. If it does not exist, do not create it.
Ensure as well that the charge that you pick, speaks to particular facts of the matter. If you are not sure about what you are doing consult your lawyers so that they can help in terms of drafting the charge letter. The charge letter is the basis for the case, so care must be taken to ensure that it has been written well.
Facts not opinions
Many people have embarrassed themselves during disciplinary hearings by charging people based on their opinions of what is right. What you are alleging to be an offence has to be an offence in terms of a code of conduct and not your thinking.
Secondly, ensure that you have facts right before proceeding with a hearing. As a matter of fact, you should be able to sustain each and every case with documentary and viva voce evidence.
In the absence of evidence there is no basis to convict an employee. The question to ask yourself is, “do we have the evidence to support the allegations.” Do your investigations thoroughly before charging a person of any misconduct.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising Attorney. Bestselling Author. Human Capital Trainer|. Business Speaker. Thought Leader. Law Lecturer. Consultant. Coach. Legal Proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].
Bongani Ndlovu