adminDavis Ndumiso Sibanda Labour Matters
AS codes of conduct settle matters at workplaces, many employers face the challenges of effective administering discipline because workers challenge the employers both over procedural and substantive issues.Going through many disciplinary decisions that have proved very costly to many employers, it is evident that employers either do not take the disciplinary process seriously or use individuals that are not trained in discipline handling.
One group of people employers need not underrate in disciplinary hearing are employee representatives from trade unions as many trade unionists have gained immense knowledge from representing workers at conciliation, arbitration and before the Labour Court and as a result are better equipped to handle disciplinary cases than many human resources practitioners and line managers.
Managerial employees who administer discipline must not preside of disciplinary cases because they are managers but must first be trained in labour legislation basics, code of conduct procedures and specifically how to chair a disciplinary hearing.
The training should not be from an academic perspective but from an applied perspective where participants engage in role plays and related activities including Landmark judgements on disciplinary matters.
Where member of the workers committee participate in discipline handling they also must be trained on the application of the code of conduct. This is over and above basic training of the workers committee on its role. While many employers view training on the code of conduct as a waste of money, it is much more expensive not to train. Recently I handled a case of an employer who unprocedurally suspended a worker without pay and benefits in April 2011. He kept on telling the worker to remain at home to this day.
In studying the case, a number of legal issues arose, the first one was whether the matter had prescribed. The next question whether prespition is applicable in cases of wrongful suspension. Further, we interrogated the question whether the suspension was unlawful. The worker demanded back pay to the date of alleged wrongful suspension.
We established that the suspension was not in terms of the relevant NEC code of conduct and as such it was a nullity meaning that the employer had broken the law. We also concluded that the matter had not prescribed because along the period from April 2011 the worker continuously +-engaged the employer and further there was a question on whether a non-event can prescribe. The employer then faced the challenges related to reinstatement, payment of backpay and benefits and also deciding the way forward, whether to settle with employee or re-engage the employee.
A simple matter became complex calling for expensive engagement of legal minds in trying to establish the legal position and to be guided accordingly. Had line managers and the human resources staff been trained, they would have known the legal route to be used in raising charges against an employee and they would have known how to manage the process of suspension so as to minimise the employers exposure to open ended liability.
Employers must not fool themselves into believing that administering a code of conduct requires common sense. The truth is that it calls for much more that common sense that’s why Labour officers, Arbitrators, trade unionists and Labour Court Judges are trained. Discipline law is a specialised area of Labour Law requiring specialist training which is not given during formal training in human resources management or at Law School. It is better handled in inhouse training or some specialised formal training programmes.
We are not saying line managers have to be mini-lawyers but we are saying they should understand the code of conduct in areas such as contents, interpretation of offences, code procedures, applying principles of natural justice, handling evidence, conduct of hearing and making a determination.
It must be noted that the conduct of a hearing, from the time of hearing starts, to the end of a hearing, there are generally between eighteen and twenty one steps and missing one of them can easily result in huge costs ordering a case to go back and be heard afresh.
In conclusion, employers who give code of conduct administration to untrained people risk having to pay much more than what they were trying to save.
Davies Ndumiso Sibanda can be contacted on: e-mail: [email protected]
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