Principle of natural justice

nothing really bad about dismissing an employee but what is bad is to do it unfairly.
The Code of Good Practice (Dismissal) imposes several requirements on an employer who is considering dismissing an employee for misconduct.
Three of these requirements include the need for the employer to first consider factors such as the employee’s length of service and disciplinary record.
They should also consider whether the misconduct is of a grave nature that it makes a continued employment relationship intolerable and whether an employee should be dismissed only if he/she has been found guilty of gross misconduct after proper procedures in terms of the principle of natural justice.
Employers must comply with the general principles of natural justice and fair procedures that employee grievances are fairly examined and processed and that detail of any allegations or complaints are put to the employee concerned.
They should also look at whether that the employee concerned is given the opportunity to respond fully to any such allegations or complaints.
In addition the employee concerned is given the opportunity to be represented during the proceedings and that the employee is given sufficient time to prepare for the hearing/meeting.
The employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf, of the employee and any other relevant or appropriate evidence, factors or circumstances.
These principles require that the allegations or complaints to be set out in writing, that the source of the allegations or complaint is given and that the employee concerned be allowed to confront or question witnesses.
Two essential or critical elements of natural justice should be religiously observed that is: No man shall be Judge in his own cause and both sides shall be heard, (or audi alteram partem).
The other principles, which have been stated to constitute elements of Natural Justice, are that the parties to proceedings must have due notice of when the matter will be heard and the disciplinary authority must act honestly.
They should also be impartial and not succumb to the dictation of other persons to whom authority is not given by Law.
Managers, when confronted with complaints, would be well advised to seek advice from their Human Resources Department and to follow any established or written guidelines laid down between the employer and employee/trade union.
It does not matter if the employee concerned is not a member of any union; the principles of natural justice still apply.
Therefore, they should still be afforded the rights to representation if they so wish, which could be a colleague or fellow worker or a lawyer.
Do not rush to judgement. Take time to consider the case, be fully informed before a decision is made and resist any pressure to reach a quick decision.
Where the Company or organisation has got a registered Code of Conduct, it’s advisable that the employer follows procedures as per that Code.
Any deviations for whatever reasons from that Code will lend you in trouble. In OK Zimbabwe v Soko (SC108/2000), Soko was dismissed for loss of crates, due to his failure to supervise properly.
This offense in terms of the Code of Conduct required that there be evidence of aggravation to warrant dismissal.
No evidence of aggravation was led and the Supreme Court did not uphold the dismissal.
Employers are advised not to lose sight of the finer procedural points of their registered Codes. Never forget that every dismissal may be tested for procedural fairness at the level of Labour Court and Supreme Court. Compliance with one’s own Code of Conduct is an inescapable requirement.
In the Gova v Zimasco case (HB1/1998), the Code laid down every clear and particular sequence of events to be followed in an investigation and a subsequent hearing.
This was not followed by the company and the High Court held that the Code was not followed and ordered Gova’s reinstatement.
Employers who adhere to their registered Codes will not in any way face problems. Even if aggrieved employees try to bend the Code, they will not succeed.
In Watoka v Zupco (Northern Region) SC87/2005, under the Code Watoka was dismissed from employment.
There was no provision for appeal to a Labour Officer, but not withstanding this he appealed to a labour Officer.
From there Zupco then appealed to Senior Labour Officer and then Labour Court. On appeal to the Supreme Court, the Court held that, where a Code of Conduct was registered, an employ could only refer the matter to the Ministry of Labour if the hearing was not concluded within 30days.
There was no provision for such referral once the case has been completed. The appeal route laid by the Code must be followed.
However, if the matter is not resolved within 30 days then employee can take the matter to the Ministry and the Code ceases to function as the matter will now be resolved via conciliation, mediation and arbitration.
Disclaimer: I do accept no liability for any damages or losses suffered as a result of actions taken based on information contained herein.
I am committed to regularly update all information that is subject to change from time to time.
The information contained herein does not serve as alternative to legal advice.
l Taurai Musakaruka is Human Resources Practitioner: feedback e-mail to [email protected] or [email protected]
l To Be Continued