adminLabour Matters Davies Ndumiso Sibanda
Failure by employers to abide by set timeframes in disciplinary cases does not mean that the case against the employee extinguishes but gives the employee the right to approach a superior court to have the employer fulfil his duty as set out in the code of conduct. In the matter Posts and Telecommunications Corporation vs Chizema SC 108/04 the Supreme Court….. “an employee validly suspended does not, because of delay alone, become entitled to reinstatement nor to reversal on review of subsequent dismissal. Instead they (parties) each have available to them the remedy of Mundamutso enforce due compliance with that which is timeous.”
This judgment relates to failure to follow procedure which many employees wrongly feel should automatically result in a case being thrown out. While there are cases where failure to follow procedure could result in court declaring proceedings a nullity, such cases are few and relate to instances where it is substantial violation of principles of natural justice.
Employees therefore have to approach the superior courts to have the employer comply with requirements of the code of conduct. The same judgment looks at powers of the Labour Court which are limited and Labour Court does not have authority to extinguish cases because of one party’s failure to hear a case as set out in the code of conduct.
For employers, failure to conclude cases within set time frames could result in employees having matters referred to Labour Offices in terms of section 101(6) of the Labour Act. When this happens the employer sits on an open-ended liability as it takes long for a case to be concluded and the employer loses the case, the worher has to be paid back pay and related benefits and allowance with statutory interest. This can be a tall order for the employer considering the fact that where trust has been lost between the parties, the employer will be ordered to pay damages and there could also be added legal costs.
The above challenge for employers means it is unwise for employers to breach set timeframes for concluding cases as guided by code of conduct as the employer runs the risk given above if the case is lost.
Some employers wrongly assume they have a very solid case and forget that so many things can occur that result in what was thought to be a solid case collapsing, for example key witnesses can leave and become uncooperative, evidence might disappear, and some key actors in the case might die before giving key evidence to the case. In one case the key witness committed misconduct and was dismissed before a case was heard before an arbitrator. When he was requested to come and witness, he refused and related documentary evidence was nowhere to be found. The case collapsed and the employee was reinstated at a huge financial and labour relations cost to the organisation.
There are however codes of conduct that expressly state that a matter not heard within set timeframes lapses. In such cases then, parties follow the code of conduct and are bound by the provisions of the code of conduct.
In conclusion, it can be said workers should not think failure to adhere to timeframes will protect them from being disciplined and employers should avoid risks related to failure to timeously deal with disciplinary cases.
Davies Ndumiso Sibanda can be contacted on: email:[email protected] <mailto:[email protected]> Or cell No: 0772 375 235.
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