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Davis Ndumiso Sisanda
MANY employers and workers seek legal advice on labour matters when it is too late to get help, as a result cases are lost at a huge cost for the parties.
John was dismissed from employment after an internal hearing after he was found guilty of habitual and substantial neglect of duties.
His offence was that on a particular evening, being the last employee to leave the office, he had not switched off computers and did not switch off the lights as well. After six months, he sought legal advice and on the basis of evidence, it was clear that the charge was inappropriate and the case was winnable.
However, he was out of time for an appeal as appeals to the Labour Court had to be done within 21 days.
The matter got complicated as despite the fact that there is a window for an application for condonation of late noting of an appeal.
The rules for such an appeal require that one has to give compelling reasons for the delay and submit on prospects of success and in his case there were no legally convincing reasons for the delay.
The given case clearly shows that labour cases are not as simple as many employers and workers assume.
At times parties seek advice from people who are out there to rob parties of their hard earned cash and leave the problems unresolved.
This position is worsened by the fact that labour consulting is an unregulated profession, anybody can go and sit outside the Labour Offices and tout for business from employers and workers who approach the labour offices for assistance.
Such representatives are unlikely to be helpful.
Employers and workers have to apply their minds on cases and seek legal advice before the case even begins.
For example, evidence against an employee must be collected and legal advice sought in crafting the charges against an employee.
This process requires some legal work in that the position of the employee must be established first to decide whether to follow managerial/non-managerial processes set out in the code of conduct.
It is not good enough to simply say once an employee is covered by the NEC, he is non-managerial as the legal test is the nature of duties performed by the employee rather than his grade.
The employer has to further legally select appropriate charges and not be guided by feelings and anger.
In addition, the hearing should be conducted in a procedural and substantively fair manner.
All these require specialist training if they are to be handled correctly.
Workers on their part should not take the disciplinary process lightly by both going to a hearing on their own and being represented by noisy but “empty” representatives.
This is likely to be disastrous for the employee’s case.
I have seen many cases where workers bring representatives who know nothing about labour laws but use threats and drop names of the powerful to try and threaten the disciplinary authority.
In conclusion, to answer the question, when one should get a representative, the answer is from the onset of the case.
If there is no internal capacity to litigate, it is better for parties to seek representations rather than to seek representation when the damage has been made and one has to pay much more than what you were trying to save.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235
Online Reporter