LABOUR LAW
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: -
PARTIES TO DISCIPLINARY HEARING
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—
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:
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: -
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