Chronicle Editor
Davies Ndumiso Sibanda, Labour Matters
MANY employers and workers have agreed to have online disciplinary hearings but at the end of the process disputes arise.
Once parties have agreed in writing to have the hearing online, they cannot unilaterally opt out. However, there is a need to follow the Code of Conduct processes and procedures during the process.
The argument that online hearings are not provided for in the Code of Conduct are unlikely to assist if initially parties agreed to the process.
The court is likely to take the view that where there was no prejudice there is no case. As long as the employer ensures the worker has a fair online hearing there will be nothing wrong. We find dicta in the case Dulys Holdings v Chanaiwa SC17/07 where the Supreme Court said where the code of conduct is silent on procedure the disciplinary authority can use a procedure that observes principles of natural justice.
The judge said “. . . The appellant’s argument that it did the best in the circumstances to ensure that the respondent had a fair hearing cannot be faulted . . .”
This case clearly shows that online hearings can be done given the Covid-19 challenges as long as principles of natural justice and the code of conduct is followed in all other areas.
Where the employer opts for an online hearing, he must ensure all the requirements of an online hearing are satisfied such as ensuring all have the required gadgets and connection to the internet.
All players must be inducted on handling the online hearing equipment and a technical person can be on if need arises. Where hearing documents are moved online there is a need to ensure there is a mechanism for confirming receipt by all parties.
There must also be a checklist to confirm all parties have the requisite tools to handle the hearing and where necessary temporary provisions of tools like Wi-Fi devices and laptops can be done.
Emerging disputes related to online hearings include workers arguing that they did not agree to have hearing conducted online and the code of conduct does not provide for that. Such arguments as mentioned earlier have to pass the fairness test. The worker carries the burden of proof that as a result of the online hearing he or she was prejudiced. There are also cases of workers who argue that they struggled with equipment as the sound was not clear. The argument hardly helps the worker as all gadgets can record the process in real time and can be replayed on the same gadget to establish the authority of the argument.
The burden of proof here lies with the worker again. It follows the simple legal principle that he who alleges must prove.
Employers in anger complicate online hearings by denying defendants and their representative things like Wi-Fi data or laptops or access to nearby facilities that the defendant and his representatives can use. In my view once the employer opts for an online hearing, he should carry the cost.
This is given the fact that discipline handling is the province of the employer and as such he should carry chosen discipline route costs.
In conclusion, there are many emerging challenges related to online hearing which are yet to be decided by courts. However, employers should always conduct online hearings fairly to avoid falling foul of the law.
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