Online Reporter
Employee Relations
Dr Request Machimbira
IN the realm of workplace governance, disciplinary committee chairpersons stand as sentinels of fairness, tasked with the weighty responsibility of ensuring that disciplinary proceedings are conducted with utmost integrity and adherence to the principles of natural justice.
Setting the foundation
Establishing receipt of disciplinary notice and adequacy of notice is crucial.
Chairpersons must clear procedural hurdles before delving into merits, ensuring that the process is fair and transparent. Failure to do so can render the process null and void, making it vulnerable to judicial review.
Preliminary submissions
Addressing preliminary issues — notice, evidence, suitability of chairperson, etc. — sanitises the process, ensuring a credible hearing.
Chairpersons must be vigilant, identifying potential pitfalls and taking corrective action to ensure the process remains fair and transparent.
Safeguarding the interests of all parties
At the heart of a chairperson’s role is the imperative to safeguard the interests of all parties to the disciplinary process — the complainant, the accused and the witnesses.
This entails a proactive approach, ensuring that each party is treated with dignity and respect, and that their rights are protected throughout the proceedings. The accused, in particular, must be treated as a suspect and not as a convict, until the process has been concluded.
Assertions by the complainant that imply guilt, such as labelling the accused a “thief” or a “sluggard”, are misdirections that demand the chairperson’s intervention, calling the parties to order and reaffirming the fundamental principle that no one is guilty until proven so.
Masters of process
Chairpersons are the masters of process, guiding the disciplinary proceedings with the knowledge that these are quasi-judicial administrative proceedings. They must navigate the complexities of administrative law, managing lawyers who may seek to apply criminal law procedures in the proceedings.
By maintaining a steadfast focus on procedural fairness, chairpersons ensure that the process is not only fair but also seen to be fair, ticking all the peremptory boxes, as contemplated by the relevant code of conduct.
Fairness in disciplinary proceedings is not solely about outcomes; it is equally about the process.
Chairpersons must protect the integrity of the process, guaranteeing procedural fairness and ensuring that all parties are afforded a reasonable opportunity to present their case.
This demands a commitment to impartiality, demonstrably fair to both parties, and a resolute refusal to act as proxies for management. Justice must not only be done; it must be seen to be done.
Avoiding the rescue mission
Chairpersons must resist the temptation to rescue any of the parties, allowing the complainant or accused to rise or fall based on their submissions. This requires a delicate balance, avoiding the rescue operations that can undermine the fairness of the process.
The temptation to rescue the complainant is often high, but this can be fatal to the integrity of the process, denting the face of fairness.
Protecting witnesses
Chairpersons must also protect witnesses, ensuring that the authentication of evidence does not translate into abuse. They must be prepared to call parties to order, maintaining a firm grip on the proceedings.
By using their discretion to establish whether a matter has been sufficiently canvassed, chairpersons can ensure that the process moves forward without allowing parties to labour endlessly on the same issues. When making a finding, chairpersons must recuse the parties from the deliberations, ensuring that their decision is impartial and based solely on the evidence presented. The finding is not a determination, but rather an establishment of whether or not the employee is guilty.
The right to mitigate
Chairpersons must subsequently communicate their findings clearly, inviting the employee to address the disciplinary committee in mitigation, and allowing the complainant to make submissions in aggravation. Failure to accommodate an employee’s right to mitigate is a procedural anomaly that can undermine the legitimacy of the process and the integrity of the disciplinary outcome.
Dr Request Machimbira is the executive director of Proficiency Consulting Group and International Wellness Institute. He writes in his personal capacity. For feedback, email: [email protected] or phone +263772693404.
Tinaye Agere