Sundaymail Editor
Legal matters
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Arthur Marara
I have been facilitating a lot of workshops for the past months in 2022 on Workers Committee and Works Council. One of the topical issues is around conducting of disciplinary hearings in terms of SI 15 of 2006.
I want to simplify it a bit for the benefit of those in Human Resources practice. There has been some unnecessary confusion from some sections that have used this instrument in the past. We will deal with these as we go. It is my hope that by the end of this series you will have a better appreciation of the law.
There is no dispute that an employer has a right to discipline its employees if there are allegations of misconduct. In the last instalment, I warned against abuse of disciplinary hearings. Employers must explore other ways of terminating contracts where the relationship is untenable rather than just to rush to terminate through disciplinary hearings.
Application of SI 15 of 2006
In order to have an understanding of SI 15 of 2006, we need to start from the provisions of Section 12B of the Labour Act which provides that an employee is deemed to be unfairly dismissed:
“(a) if, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or
(b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).” (emphasis added)
If the dismissal is not done in terms of employment code, it means it is unfair. The employment code refers to a registered code of conduct that applies to a particular undertaking. Many organisations have developed employment codes to govern disciplinary issues. The definition above recognises that there are two codes of conduct;
1. Employment Code, and
2. A model code established in terms of S101(9)
There are instances therefore when SI 15 of 2006 applies to proceedings:
◆ When there is no employment code of conduct.
◆ Even if there is a code of conduct, it does not cover certain employees. For example, many employment codes of conduct do not cover managerial employees. They only focus on non-managerial employees or NEC Graded.
There is need to ascertain what the applicable Code of Conduct is before proceeding to use a particular code.
Use of SI 15 of 2006 is not optional
It’s either the instrument applies to a specific employee or it does not. If does, it has to be used; if it does not, the applicable code must be used. In CHIKOMBA RURAL DISTRICT COUNCIL V HERBERT PASIPANODYA SC 26.12 where the Supreme Court stated the law on codes of conduct;
“Section 101 of the Act provides that a registered employment code shall be binding in respect of the industry, undertaking or workplace to which it relates.
It is the appellant’s contention before this Court, as it was in the court a quo, that the appellant was entitled to use either the Regulations made under the Act or its code of conduct or both as this was specifically agreed upon in the contract of employment signed by both parties.
There can be no doubt, regard being had to the provisions in the Act and the Regulations to which reference has been made, that the submission by the appellant that it was entitled to use either the Act or the Regulations or both is not tenable. Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations can only be invoked where there is no registered code of conduct. Since it is common cause that the appellant does have a registered code of conduct, the termination of a contract of employment of any of its employees had to be in terms of its code of conduct and not the National Employment Code of Conduct. The appellant therefore erred in terminating the respondent’s employment in terms of the National Employment Code of Conduct.” (Emphasis added)
The Court rejected the submission that the appellant was entitled to use the National Employment Code of Conduct because the parties had agreed that the code could be used equally. Clearly any agreement entered into between the parties had to comply with the specific provisions of both the Act and Regulations. Any agreement to the contrary would be against the law and a termination of employment based on such agreement would be null and void. That statutory provisions override the common law goes without saying.
The reasoning of the Supreme Court was adopted in the case of Tagarirofa v Nhedziwa High School Development Committee (HMT 23-20). If you use the wrong code the whole proceedings can be set aside for non-compliance with the provisions of Section 12B of the Labour Act. The High Court of Zimbabwe had the opportunity to pronounce on this point in the case of Tagarirofa v Nhedziwa High School Development Committee (HMT 23-20) Justice Muzenda had the following to say; “The basis for seeking the order for a declaratur by the applicant is basically that the proceedings were conducted under the auspices of SI 15 of 2006 and not under the code of conduct for the National Employment Council for Welfare and Educational Institutions, which was the appropriate employment Council at the time the disciplinary proceedings were conducted. The respondent denies that it used SI 15 of 2006 wrongly. It argues that at that time there was no registered code of conduct to be used by it so it used SI 15 of 2006, the argument by the respondent does not find favour with this court.
The National Employment Council for Welfare and Educational Institutions apply to non-governmental schools and has been in existence for fairly a long time. In my view, the respondent sought to have resorted to that employment council in disciplining the applicant. I agree with the applicant that once the respondent used the wrong statute and or wrong code of conduct, the subsequent proceedings are nullity. [2] the proceedings were not in accordance with the due process of the appropriate legislation applicable to the dispute in question. SI 15 of 2006 would only apply where there is no applicable code of conduct.”
Fairness of the dismissal starts with the procedural fairness. Did we use the right code of conduct? Did we follow the code of conduct in terms of what it says in conducting the disciplinary proceedings? In the above cited matter, the proceedings were set aside for using the wrong code of conduct.
In the next article, we will walk together and look into the structure of SI 15 of 2006 in detail so that we prevent the mistakes most companies make in disciplinary hearings. Do not miss the upcoming instalments.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
◆ Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].
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