What constitutes a fair hearing?

Procedural fairness may in fact be regarded as the “rights” of the worker in respect of the actual procedure to be followed during the process of discipline or dismissal.
It is concerned with the procedures used by a decision-maker, rather than the actual outcome reached.

It requires that a fair and proper procedure be used when making a decision.
A decision-maker who follows a fair procedure is most likely to reach a fair and correct decision in most cases.
To ensure a procedural fairness the following the employer must inform the employee of allegations in a manner that the employee can understands.
The employee should be allowed reasonable time to prepare a response to the allegations and must be given an opportunity to state his case during the proceedings.

They have the right to be assisted by workers representatives or other employee during the proceedings or legal practitioner (if the registered code allows).
The employer must inform the employee of a decision regarding a disciplinary sanction in writing in a manner that the employee can understand.
They must also give clear reasons for dismissing the employee and keep records of disciplinary actions taken against each employee, stating the nature of

misconduct, disciplinary action taken and the reasons for the disciplinary action.

Whether or not a dismissal has been effected in accordance with a fair procedure and for a fair reason is very often not established with any degree of certainty beyond “I think so” or “It looks ok to me”.
What must be realised is that the Labour Act Chapter 28:01 recognises three circumstances under which a dismissal may be considered fair, i.e. misconduct, incapacity (including poor performance) and operational requirements (retrenchments).

This, however, does not mean that a dismissal effected for misconduct, the courts will consider incapacity or operational requirements as automatically fair should the fairness of the dismissal be disputed.
In effecting a dismissal under any of the above headings, it must be further realised that, before imposing a sanction of dismissal, the chairperson of the disciplinary hearing must establish (satisfy themselves in their own mind) that a fair procedure has been followed.

When the chairperson has established that a fair procedure has been followed, he/she must then examine the evidence presented and must decide, on a balance of probabilities, whether the accused is innocent or guilty.
If the accused is guilty, the chairperson, in consultation with other members of the disciplinary committee, must then decide what sanction to impose.
If they decide to impose a sanction of dismissal, the decision must be made after considering all the relevant factors, whether the dismissal is being imposed for a fair reason.

The foregoing must be seen as three distinct procedures that the chairperson, together with his committee, must follow, and he must not even consider the next step until the preceding step has been established or finalised.
The three distinct steps include establishing the fairness of the entire process through examination.

This examination should include the whole process from the original complaint, review of submissions by both parties, findings from cross-examinations, deliberations by the committee looking at both mitigating and aggravating factors.
The examination should also look at whether the accused has not been compromised or prejudiced by any unfair actions on the part of the employer.

Remember that at the courts, the employer must prove that a fair procedure was followed.
The chairperson must not even think about “guilty or not guilty” before it has been established that a fair procedure has been followed.
However, the unfortunate thing here in Zimbabwe is that some people who chair these hearings are not fully trained or not trained at all and end up making decisions that are wrong and this may cost the employer in the long run.

Some simply “fire” to please the chief executive, who no longer wants this employee within the company, at the expense of other stakeholders, major and minority shareholders included.

Secondly, if a fair procedure has been followed, then the committee can proceed to an examination of the minutes and the evidence presented to establish guilt or innocence.

Lastly, if the employee is guilty, the chairperson, in consultation with his committee, must now decide on a sanction.
Here, the chairperson must consider several facts in addition to the evidence. They must consider the accused’s length of service, his previous disciplinary record, his personal circumstances, whether the sanction of dismissal would be consistent with previous similar cases, the circumstances surrounding the breach of the rule, and so on.

The chairperson must consider all the mitigating circumstances (those circumstances in favour of the employee, e.g. the age of the employee, length of service, his state of health, closeness to retirement, position in the company, his financial position, level of remorse shown, level of education, and so on)
They must look at all the aggravating circumstances (those circumstances that count against the employee, e.g. seriousness of the offence, position in the company, degree of trust required, etc).

The chairperson must also consider all the extenuating circumstances (circumstances such as self-defence, provocation, coercion).
They should ask themselves the following questions to establish substantive fairness.
Is my reason good enough to justify dismissal? Was a company rule, or policy, or behavioural standard broken?

If so, was the employee aware of the transgressed rule, standard or policy or could the employee be reasonably expected to have been aware of it?
You cannot discipline an employee for breaking a rule if he was never aware of the rule in the first place.
Has the employer consistently applied this rule? Is dismissal an appropriate sanction for this transgression?
In other cases of transgression of the same rule, what sanction was applied? Take the accused’s personal circumstances into consideration, consider also the circumstances surrounding the breach of the rule and consider the nature of the job.

The chairperson must allow the employee to plead in mitigation and must consider whether a lesser penalty would suffice.
Only after careful consideration of all this, can the chairperson arrive at a decision of dismissal and be perfectly satisfied in his own mind that the dismissal is being effected for a fair reason.

The “Hearing rule” should be religiously followed, that is the person concerned has a right to an opportunity to reply in a way that is appropriate for the circumstances.

They also have the right for their reply to be received and considered before the decision is made and to receive all relevant information before preparing their reply.

It should be noted always that procedural irregularities need not be gross or fatal.
In the Dalny Mine v Banda (SC39/1999), the matter was set down for hearing, where the court on finding what it considered fatal irregularities, allowed Banda’s appeal without even looking at the merits of the case.

The Supreme Court held that where there were procedural irregularities, the court’s choice is either to remit the matter so that irregularities can be addressed or to hear the evidence itself so that the irregularity can be addressed.

There is a tendency amongst some legal practitioners to look at technical arguments to raise on procedural matters, particularly where on the merits their client “doesn’t have a leg to stand on”.

However this case should not be used to justify every non-compliance with procedures.
It will be of value when the defect is seen to be such that a fair hearing can readily address the irregularity, either at the court itself or after being remitted back.

Disclaimer
I do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.