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LABOUR LAW

GUIDE ON HOW AN EMPLOYER SHOULD CONDUCT A DISCIPLINARY HEARING IN TERMS OF LABOUR (NATIONAL EMPLOYMENT CODE OF CONDUCT) REGULATIONS STATUTORY INSTRUMENT 15 OF 2006

The proper holding of disciplinary proceedings is an essential aspect of a company’s human resources management. The first thing an employer needs to do is to identify the relevant law to apply. If the employer and the employee are members of a National Employment Council the employer should ascertain whether the disciplinary hearing is provided for in the collective bargaining agreement between. This article is focused mainly on employees and employers who are subject to or governed by the Labour (National Employment Code of Conduct) Regulations S. I. 15 Of 2006 (Herein referred to as the Employment Code).

The proceedings must be conducted correctly as provided for in the Employment Code for the benefit of both the Employer and the Employee. An employer should avoid placing themselves in as situation where they are sued by the employee for damages occasioned by procedural irregularities. An employer to ensure disciplinary proceedings are conducted procedurally and correctly.

WHAT ARE THE MISCONDUCTS THAT WARRANT FOR A DISCIPLINARY HEARING IN TERMS OF THE NATIONAL CODE

Section 4 of the Employment code provides for misconducts that may warrant a disciplinary hearing: -

  1. any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; or
  2.  
  3. willful disobedience to a lawful order; or
  4.  
  5. willful and unlawful destruction of the employer's property; or
  6.  
  7. theft or fraud; or
  8.  
  9. absence from work for a period of five or more working days without leave or reasonable cause in a year3; or
  10.  
  11. gross incompetency or inefficiency in the performance of his or her work; or
  12.  
  13. habitual and substantial neglect of his or her duties; or
  14.  
  15. lack of a skill which the employee expressly or implied held himself or herself out to possess.
  16.  

PARTIES TO DISCIPLINARY HEARING

  1. the Disciplinary Hearing should be presided over by the Disciplinary Committee or Authority. "Disciplinary committee" means a committee set up at a workplace/establishment composed of employer and employees representatives, to preside over and determine disciplinary cases and/or worker grievances. However, a Disciplinary Authority may constitute one person who may be an arbitrator or labour officer.
  2.  
  3. The choice of whether the Disciplinary Hearing is presided over by a disciplinary committee or authority is dependant on the provisions of the relevant collective bargaining agreement to the organisation’s industry or in the absence of a collective bargaining agreement the provisions of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006 (herein referred to as the Employment Code).
  4.  
  5. The employee can represent themselves, be represented by either a fellow employee, worker's committee member, trade union official/officer or a legal practitioner;
  6.  
  7. The employer should have a representative prosecuting the matter. This could be the head of department, human resources office or internal legal officer. The code is silent on whether an external lawyer can prosecute the matter but there is a plethora of case law that allows for the legal representation of the employer.
  8.  

NOTIFICATION OF EMPLOYEE OF THE MISCONDUCT THEY ARE BEING CHARGED WITH

Section 6(1) of the Employment Code states that where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension. The suspension letter specify the reasons and grounds for the suspension as well as state the misconduct that employee is to be charged with.

CONDUCTING DISCIPLINARY HEARING
The law

In terms of section 6(4) of the Employment code, at the hearing an employee shall have the right to—

  1. appear in person before the employer or the employer's representative or disciplinary authority as the case may be and be represented by either a fellow employee, worker's committee member, trade union official/officer or a legal practitioner;
  2.  
  3. call witnesses and have them cross-examined;
  4.  
  5. be informed of the reasons for a decision;
  6.  
  7. address in mitigation before the ultimate penalty is imposed.
  8.  

The procedure

In the case of Chataira v ZESA SC83-01, the Supreme Court held that in a disciplinary hearing against an employee, natural justice requires that the employee, should know of the accusations he has to meet; that he should be given an opportunity to state his case. that the disciplinary committee or authority should act in good faith. The court went on to state that it is not necessary that viva voce evidence be led. The employee must be shown any statements or documentary evidence that is being produced before the disciplinary committee/authority but he need not be afforded all the facilities which are allowed to a litigant in a judicial trial.

It should be noted that this discretion to the employer is subjective. It is advisable for the employer representative prosecuting a case to be a legal practitioner or to have consulted a legal practitioner before conducting the prosecution.

DURATION OF INVESTIGATION OF MISCONDUCT AND HOLDING OF DISCIPLINARY PROCEEDINGS

In terms of section 6(4)(a) of the Employment Code, the employer should give the employee 3days notice of the hearing. In the event of default at the hearing by the employee the disciplinary committee or authority may proceed to conduct the hearing in the employees absence. However, the employer has to prove that the employee was served with the notice.

Further, s6(2) of the Employment code mandates the employer to investigate the alleged misconduct against the employee and hold Disciplinary Proceedings within 14days of serving the employee with the suspension letter. Parties may extend the time period for the finalization of the proceedings if both sides give consent for the extension.

PRINCIPLES TO CONSIDER WHEN CONDUCTING A DISPLINARY HEARING
It is paramount that the employer follows the letter of the law when conducting Disciplinary proceedings to ensure that the principles of natural justice are complied with.

In Jerry Musarira v Anglo American Corporation SC 53/05 the following requirements for natural justice were highlighted at p 4 of the cyclostyled judgment:

  1. “… The rules of natural justice in such a case are that the party concerned –
  2.  
  3. (a) must be given adequate notice;
  4.  
  5. (b) must be heard or be able to present his/her side of the story Audi alteram partem and
  6.  
  7. (c) should be allowed to call witnesses if he/she so wishes. See Dabner v SA Railways and Harbours 1920 AD 588 at 598…”
  8.  

Audi alteram partem means, literally, “hear the other side” is a principle of natural justice. The principle states that the party or parties involved in the matter should be given the proper opportunity to present their cases before the administrative decision-maker deciding a case.

VERDICT
Upon holding the disciplinary hearing, the employer may: -

  1. serve a notice, in writing, on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction; or
  2.  
  3. serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee
  4.  

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