How to conduct disciplinary hearing

Legal Matters with Arthur Marara

In the last article I introduced you to the subject of unfair dismissal. I am following up on the subject with the objective of seeing more hearings conducted in a procedural manner. Unfair dismissals have cost many companies hundreds of thousands of dollars in the past. What will be impeached when an unfair dismissal is alleged are two things; procedural fairness, and the substantive fairness. This article will speak to those people who are involved in conducting disciplinary hearings, and those who are going through one.

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 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;

“The basis for seeking the order for a declaratur by the applicant is basically that the proceedings were conducted under the auspices of SI 15 of 2006 and not under the code of conduct for the National Employment Council for Welfare and Educational Institutions which was the appropriate employment Council at the time the disciplinary proceedings were conducted.  The respondent denies that it used SI 15 of 2006 wrongly.  It argues that at that time there was no registered code of conduct to be used by it so it used SI 15 of 2006, the argument by the respondent does not find favour with this court.  The National Employment council for Welfare and Educational Institutions apply to non-governmental schools and has been in existence for fairly a long time.  In my view the respondent sought to have resorted to that employment council in disciplining the applicant.  I agree with the applicant that once the respondent used the wrong statute and or wrong code of conduct, the subsequent proceedings are nullity. [2] 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 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.

The Question of Onus

The law has to be set out at this stage; it is the duty of the employer to prove the employee’s guilt, and not the duty of the employee to prove his innocence. This is the bit many employers miss. You cannot expect to build your case based on the testimony or cross-examination of the employee. Onus simply means a duty to prove something. For example, if the Complainant is alleging that, the Respondent employee committed act, conduct or omission “which is inconsistent with the fulfilment of the express or implied conditions of his or her contract of employment.”  The Duty to prove this position rests squarely on the Complainant. The employee does not have to prove anything. The employer has to prove its case. It is the duty of the employer to prove the GUILT of the employee and not for the employee to prove his or her innocence.

The question of onus as well is quite settled in terms of the law;  “The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this court. In Book V Davidson 1988 (1) ZLR 365 (S) at 384 B-F, Dumbutshena CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd V Mechin 1965 (2) SA 706 at 711 E-G. ‘The general principle governing the determination of the incidence of the onus is the one stated in the corpus luris simper necessitasprobandiincumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore. (Emphasis added by underlining)'”As per the Supreme Courtin Astra Industries Limited v Peter Chamburuka SC 27-12. See also: INTER-AGRIC PRIVATE LIMITED v ALLAN MUDAVANHU AND 12 OTHERS SC.9/15

The particulars of the offence and the evidence must marry. The position of the law on the question of particulars of the charge is settled, and the Disciplinary Authority (DA) or Disciplinary Committee (DC) is bound by the precedent. In NEI Zimbabwe (Pvt) Ltd v Makuzva LC/H/248/04 the court held that the employer should not just allege that there is conduct inconsistent with the contract, it must cite and prove the actual conduct. The Supreme Court has stated the position on the importance of particularity, and clarity in terms of the charges.

In DELTA BEVERAGES (Cited as a division of Delta Corporation Limited) v ONISMO RUTSITO SC42/13 the Court held that

“…Where such particulars are not set out, the defendant is embarrassed in his defence as he cannot know the basis on which liability is claimed. It is not enough to allege negligence and fail to give particulars of such negligence. It is now well established that a defendant is entitled to know the outline of the case that a plaintiff will try to make against him. Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H), p 139 D-E. Also Honikman v Alexandra Palace Hotels (Pty) Ltd 1962 (2) SA 404, 407 A-B” (Counsel’s underlining for emphasis)

What does this mean? It simply means that a complainant has to set out the essentials in terms its charge, and what is not contained therein cannot be a basis for a conviction because an employee is entitled to be made aware of every detail. The DA or DC is therefore directed by operation of the law to focus on the points contained in terms of the charge, and not anywhere else as happened during the hearing.  The charges must be clear. What is the violation complained of? A number of times disciplinary hearings are often in darkness as to what they are supposed to be presiding over. The charge is speaking one thing, and the evidence being led is speaking another. There must be sufficient clarity and particularity.  An employee can only be dismissed for offence charged

There is a tendency for emotions to be put into disciplinary hearings and consequently, you find new offences being introduced in the determination. Stick to the question;

What is the charge?

Has it been proven?

If the charge has been proven, the employee must be acquitted. It is as simple as that, unless if you are a daring employer who does not care about the cost, and wants to get rid of the employee at all costs.

The employee must be in the know as to the case against him or her, and the employer has to discharge the onus on it in terms of the law. The Supreme Court has made it very clear that a party cannot build a case as it goes. In a fairly recent judgment of LAWSIGN NYARUMBU v SANDVIK MINING     AND CONSTRUCTION ZIMBABWE (PVT) LTD SC31/2013 the Supreme Court held that;

“It is axiomatic, in criminal as well as disciplinary proceedings that a person cannot be found guilty of an offence that has not been preferred against him, unless that offence is a competent verdict on the offence originally charged.  The reason for this is obvious, viz.  The person accused must be made aware of the case against him in order to enable him to effectively prepare his defence.  In this context, notwithstanding the provisions of s 89(2)(a)(ii) of the Labour Act, the Labour Court cannot, mero motu, substitute its own charge or make a finding of guilt on an entirely different offence.  Any such action would constitute a blatant miscarriage of justice.  See Zimasco (Pvt) Ltd v Chizema 2007 (2) ZLR (S) 314 at 316E-317G.  Furthermore, sitting as a court of appeal, it can only deal with the matter on the basis of the grounds of appeal that have been raised by the appellant.  See Chikanda v United Touring Company Limited SC 7/99 at p 3.

In the instant matter, it is not in dispute that the appellant was never at any stage charged with negligence.  Moreover, the grounds of appeal before the Labour Court were confined to theft, without any reference to negligence, and negligence was not canvassed by the parties in the proceedings before it.  What the court did, by finding the appellant guilty of negligence, was to usurp the functions of the respondent’s disciplinary and appeals committees.  It follows that the court fundamentally erred in its finding of negligence, as that was an issue which was clearly not the subject of the appeal before it.” (Counsel’s underlining for emphasis) I trust that this article has shared some thoughts on how to conduct a disciplinary hearing.

*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 corporate law attorney. He has specialised in employment law matters having worked with corporates, trade unions, and individuals in their labour matters. He is also a notary public and conveyancer. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara

@gmail.com.