adminare several requirements that an employer, who is considering dismissing an employee for misconduct, needs to satisfy.
Three of these requirements are: The employer should first consider factors such as the employee’s length of service and disciplinary record.
Secondly, the misconduct must be of such a grave nature that it makes a continued employment relationship intolerable and an employee should be dismissed only if she or he 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.
Details of any allegations or complaints should be put to the employee concerned and they should be given the opportunity to respond fully to any such allegations or complaints.
The employee must also be given an opportunity to be represented during the proceedings.
They must be given sufficient time to prepare for the hearing/meeting and a 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 and impartially and not under 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 or registered trade union member (my emphasis).
Do not rush to pass 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 follow 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 offence 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 and Supreme Courts.
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 notwithstanding this he appealed to a labour officer.
From there Zupco then appealed to a 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 employee could only refer the matter to the Ministry of Labour if the hearing was not concluded within 30 days.
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 and arbitration .
Managers should desist from inducing offences so as to get rid of certain employees who, “all of a sudden are no longer required by the organisation”.
Another classical case is that of Larcombe v Natal Nylon Industries (Pvt) Ltd, the employee’s dismissal after alleged fallout with members of the employers’ management team was ruled unfair.
Mr Larcombe alleged incompatibility arose from a tiff with another member of the management team, which led the Managing Director to the conclusion that one of them would “have to go”.
The court held that this was a totally inadequate reason for getting rid of Larcombe. So too was the dismissal at issue in Joslin v Olivetti Systems and Networks Africa.
Mr Joslin was fired because he had conducted himself in a manner considered unbecoming for one of the company’s management team.
His offending actions consisted of, among other things, walking about with a fistful of pens crammed into his shirt pocket, promoting a “yes” vote in a national referendum and on one occasion wearing a Springbok cap to work.
The court found out that the applicant’s behaviour, though odd was merely a “mild form of exhibitionism” not warranting dismissal.
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; 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.
It was held by the Supreme Court 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.
Therefore, to all progressive employers, be advised that it makes much sense to ensure that there are no irregularities in the initial stages and ensure that a fair and objective process is followed. Failure to do so may brew problems for you.
Disclaimer: I do accept no 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.
Taurai Musakaruka is a human resources practitioner. Feedback: e-mail to [email protected] or [email protected]
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