The disciplinary hearing and the ancillary processes

This section discusses the several stages one expects to go through when partaking in a disciplinary hearing process. The processes we describe and outline in this section are borrowed from almost every code of conduct that is applicable in Zimbabwe. Employers are under a legal obligation to ensure that they follow all the stages outlined in the disciplinary hearing process. Failure to religiously follow these processes may vitiate the proceedings.[1] Several disciplinary hearings have failed due to the employer not paying attention to one or more of the stages of these processes. The processes discussed below, when religiously followed, result in an organized hearing and outcome. This prevents unnecessary technicalities on appeal. Lastly, the section also looks at the need to exhaust domestic remedies provided under the Labour Act, on the part of those who are aggrieved by an outcome of a disciplinary hearing process.

The applicable code of conduct

Before embarking in any disciplinary hearing process, it is important for the employer to ascertain the code of conduct applicable to the employee in question. Guidance must be sought from section 101 of the Labour Act when determining the code applicable to the accused person. As a general rule, where an NEC has a registered code and the employer does not have a registered employment code, the NEC code should be used. In the event that the employer and the NEC do not have a code of conduct, the national code of conduct (SI 15 of 2006) must be used. If an employer has a registered code of conduct, that must take precedence over the National Code and any NEC-registered code of conduct. It has been held that even where an entity has a code of conduct but for some reason it becomes inapplicable, the national code should be utilised.[2] Parties to an employment relationship cannot, therefore, be left without a remedy because the code of conduct has become inapplicable to the circumstances of their disciplinary matter.[3]

Selecting the appropriate code of conduct is a critical stage in the disciplinary hearing process because any process done under an invalid code of conduct is null and void. Any action that is null and void does not exist at law, and in the eyes of the law, it will be like no proceedings were ever done.

The Suspension stage

This is an important stage when the employer wants to engage in an investigation but realizes that there is a danger that evidence may be interfered with. Some codes make it mandatory for the employee to be suspended if a certain category of offences is committed. In other instances, which is in most cases, the code of conduct leaves the employer with the discretion to suspend an employee.[4] Offences such as theft, fraud, and fighting in the workplace may attract a suspension. It is important to note that a suspension can be with or without pay.[5]

When administering a suspension letter, it is crucial to specify the type of suspension being administered to the accused employee. Without this specification, the suspension will be deemed to be with pay. A suspension given in order to institute investigations should not be regarded as a punitive suspension because at this stage the employee is not guilty.[6] The question of punishment does not come into play. The employer is under an obligation to reinstate an employee on a finding that the employee did not commit an offence which was the basis of the suspension.[7]

Investigation stage

The investigation stage is a fact-finding mission. This is when the employer seeks to ascertain if the employee committed the offence. At this stage, the hearing official or committee is not involved. This is where the person complaining on behalf of the employer is gathering evidence. Gathering of evidence may entail recording witness statements, gathering documents, and video footage as may be relevant to the matter at hand.

It is essential that the person who does the investigation be someone who is not going to preside over the hearing. Our common law has a rule which states “nemo iudex in sua causa”, which basically means that no one should be a judge in his or her own cause. A complainant in a disciplinary case cannot end up being the hearing official. This also applies to witnesses. One cannot be a witness and a hearing official at the same time.

Hearing Official or Committee

The appointment and selection of a hearing official is governed by the code of conduct. If the code of conduct is silent on the question of appointment it is the obligation of the employer to select a hearing official or committee. As already mentioned, the right person or persons should not be interested in the dispute.

The composition of a committee is also in the normal course of events, prescribed by the code of conduct. A committee is usually formed by an equal number of employer and employee representatives and a chairman.[8] Decisions of whether a person is guilty or not guilty, as regards a committee, are usually decided by way of a vote, with the chairman of the committee having the right to put in a casting vote. Employee representatives in a committee are usually formed by members of a worker’s committee or the employee can provide representatives of his or her own choice.

It is important to note that when utilizing SI 15 of 2006, there is no limitation as to who can form part of a disciplinary authority. Any person or group of persons can be appointed to hear a case as was held in National Engineering Workers Union v Dube SC 1 – 2016.

The notification

At this stage, the employee is notified of the disciplinary hearing. Most codes provide for three days’ notification for the hearing.[9] This notice is meant to ensure that the accused employee has adequate time to prepare for the disciplinary hearing. Failure to give an employee the hearing notification vitiates the disciplinary proceedings. Notifying an employee of an impending disciplinary hearing is a basic rule of natural justice

The Hearing

Once an employee is notified of the disciplinary hearing it is expected that he or she should be heard. The process of hearing an accused employee entails important distinct stages. So important are these stages that failure to respect them may result in a fatal irregularity, nullifying the proceedings. It is the duty and obligation of the hearing official and or the committee to ensure that the correct procedure is followed. The hearing procedure depends on a code but generally, the items stages discussed below are expected.

Reading out the charge

During the hearing, and before evidence is led, it is expected that the accused employee must know the details of the charge. This is besides the fact that this will also be the charge given to the employee when the process started. At this stage, the official presiding over the hearing must read the charge which is contained in the hearing notification or any other document that the employee may have received. The purpose is to ensure that the employee is given an opportunity to plead either as guilty or not guilty. Once this is done, the evidence is expected to be led.

We submit that even where an employee pleads guilty, the hearing tribunal should hear the evidence forming the basis of this plea. This will allow it to come up with a proper penalty. This will also allow the tribunal to determine if indeed the accused is guilty. In the administration of justice, it’s not surprising that persons may be intimidated into pleading guilty without fully understanding the consequences. Ensuring that evidence is led, will allow those presiding over hearings to fully determine and ascertain an individual’s culpability before imposing the appropriate penalty.

Presentation of Evidence

The evidence emanating from the investigation done before the commencement of the disciplinary hearing is expected to be presented in the hearing. Evidence is usually presented through witnesses. These can either be the complainant’s witness or the accused’s witness. The accused or the complainant can also present evidence. The general rule is that he who accuses a person must provide the proof.[10] Therefore, the complainant must provide evidence first before the accused rebuts what’s presented in the evidence.

Where witnesses are used, it is the person calling the witness that asks the witness the first set of questions. This is akin to the examination in chief that one expects to see in court proceedings. The adversary is also expected to cross-examine the witness. This tests the evidence provided in the examination in chief. Once this is completed, the person who called the witness can then reexamine the witness before the witness is excused from the disciplinary hearing.

Presenting evidence in this manner prevents confusion and allows fairness because every party is given an opportunity to ask questions and test the evidence presented. This forms the basis of the right to be heard in that an accused is given an opportunity to face his or her adversary and to confront the adversary through cross-examination. It also forms the basis for organized disciplinary hearings which buttresses a fair hearing.

General Rules of Evidence

Strict rules of evidence do not generally apply in disciplinary proceedings. The evidence should provide the committee or the official with an indication as to whether, on a balance of probability, the accused committed the offence or not. What constitutes a balance of probability is now settled in our jurisdiction. In Lewendo Ent. (Pvt) Ltd v Freight Africa Logistics (HC 2416/2014) it was held:

“The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff’s claim against the defendant’s defence.  It necessitates a decision of which of their versions of events is more likely to be true. In other words which version is more believable, or most likely to have transpired, than the other? It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff’s version being the correct one as opposed to the defendants, or vice versa. In making this determination we look at the pleadings, at the documentary evidence, at what the parties’ representatives said and did when they were in the witness stand, and finally at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.”

Proof on a balance of probability does not mean that every piece of evidence presented must be utilised in coming up with an outcome. Not every piece of evidence presented in a hearing is acceptable and should be taken into consideration. The primary rule of all the evidence to be presented in a hearing must be relevant to the issues under discussion. Evidence not connected to the offence and issues in question is not acceptable. Not taking into consideration such evidence, does not prejudice the accused employee. On the contrary, if relevant evidence is not taken into consideration, the proceedings may be vitiated as this may prejudice the accused.

It should be pointed out here that, even in situations where an employee is charged with an offence of a criminal nature, the burden of proof does not change. It remains that on a balance of probability. This is the standard of proof applicable to civil proceedings including disciplinary hearings.

Finding of Guilty or Not Guilty

When the evidence has been presented by both parties and correctly tested through cross-examination, it is important for the hearing official or committee to assess the evidence and determine on a balance of probability if the person is guilty or not guilty. At this stage, the hearing official, or the committee, as the case may be, does not impose a penalty. This is just a pronouncement of whether the accused person has been found guilty or not. Issuing a penalty at this stage is an irregularity because the employee so accused is will not have been given an opportunity to address the committee or hearing officer in mitigation. Equally so, the complainant will not have addressed the aggravating circumstances to the panel or tribunal hearing the dispute. This is thus a critical stage in the disciplinary process.

Mitigating circumstances

The hearing official or committee is under a legal obligation to be addressed in mitigation by the accused employee. This is a rule that applies in every disciplinary hearing. This is so as an extension of the right to be heard. If the accused is not given an opportunity to address in mitigation the proceedings may be vitiated to the extent that the employee did not address the hearing tribunal. Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) show the importance of addressing the hearing tribunal in mitigation.  In this case, failure by the hearing official to hear the accused’s mitigation led to the invalidation of all processes that had happened after this failure.[11]

Penalty

The imposition of the penalty marks the end of the disciplinary proceedings.[12] The penalty can only be validly imposed after the hearing tribunal has heard the points in mitigation as indicated above. The discretion to give an appropriate penalty is that of the tribunal. Any other person issuing a penalty would result in a gross irregularity.[13] In Hwange Colliery Company Limited v Benson Ndlovu & Andrew Ndlovu (SC46/20) the court pointed out that the discretion to impose an appropriate penalty must be respected.[14]

Internal Appeal

A party that is aggrieved with the proceedings can appeal internally and challenge the decision made at the initial hearing stage. An appeal is on the record meaning that the person hearing the appeal relies on the record of the initial hearing to challenge the outcome of the disciplinary hearing.[15] It is only when there are no internal appeal mechanisms that an aggrieved employee can appeal externally. In other words, there is a legal obligation on the part of an aggrieved person to ensure that all internal remedies provided in the code of conduct and the Labour Act are exhausted before appealing externally. We end this discussion by analyzing the legal obligation to exhaust these domestic remedies.

A need to exhaust all procedures in a code of conduct

Once proceedings under a disciplinary code of conduct have been initiated, the parties, the accused employee included, have a legal duty to ensure that they exhaust all the remedies provided under that code. Section 101(5) of the Labour Act (Chapter 28.01) precludes an aggrieved person from referring a matter to a labour officer. This section reads:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

The section is clear, a labour officer doesn’t have jurisdiction to entertain a dispute that is still under the realm of the code of conduct. An accused employee must appeal internally first and ensure that all channels are exhausted before appealing externally.

Individuals fall into the trap of prematurely referring disputes that are still within the ambit of domestic channels. Jambwa v GMB (HC 11113/11) is one case in which an employee decided to appeal to the High Court against a decision of a General Manager for GMB whereas the code of conduct clearly stated that such appeal should be referred to the Labour Court. In its decisive remarks the court had this to say:

“In casu an appeal to the Labour Court from a decision of the General Manager is a domestic remedy available to the applicant. It is able to afford him redress. Therefore, the applicant has not exhausted domestic remedies as he should have proceeded in the Labour Court by way of appeal. The application cannot succeed on that basis.”

The same problem was also witnessed in Moyo v Gwindingwi N O & Anor HB 168/11 in which the courts also thought:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

These cases clearly point to the need for an aggrieved party to fully comply with the provisions of a code of conduct. If a wrong forum is approached that forum will have no option but to dismiss such an appeal.

Conclusion

The process of engaging in a disciplinary hearing is not a haphazard process. Distinct steps have to be followed by all those involved. The employer has a duty to ensure that an employee is not unfairly dismissed. This duty points to the need to religiously follow a code of conduct. Failure to follow all the processes outlined above may result in the invalidation of the proceedings.


[1]              Muchechetere v ZBC (Private) Limited and 2 Others (143-2021).

[2]              See City of Gweru v Richard Masinire (SC 45/13) where it was held: “Considering that it is undesirable for parties to a dispute to be left without an appropriate mechanism of resolving their labour disputes, like professor Madhuku and CH Mucheche, I consider that s 12B (2) (b) should be given a broad purposeful interpretation to include circumstances where an existing internal code of conduct or dispute resolution mechanism cannot for justifiable reasons apply to a particular case. It, therefore, appears to me that the legislator intended the model code of conduct to be a fall-back labour dispute resolution mechanism where it is impossible or inappropriate for a good reason to apply any other dispute resolution mode”.

[3]              City of Gweru v Richard Masinire (SC 45/13).

[4]              See Section 6(1) of Statutory Instrument 15 of 2006 which provides: “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”

[5]              See Section 6(1) of Statutory Instrument 15 of 2006.

[6]              See Section 70(1) of The Constitution of the Republic of Zimbabwe, 2013. 

[7]              See the National Code of Conduct which provides, under Section 6 (2) that: “Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall, within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of the employee and, may, according to the circumstances of the case— (a) ….; or (b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such employee if the grounds for suspension are not proved.”

[8]               See the National Code of Conduct which provides, under Section 2 that: “disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employee’s representatives, to preside over and decide over disciplinary cases and/or worker grievances;”

[9]              See the National Code of Conduct which provides, under Section 6(4) that: “At a hearing in terms of subsection (2), an employee shall have the right to— (a) at least three working days’ notice of the proceedings against him or her and the charge he or she is facing”.

[10]            See British American Tobacco Zimbabwe v Chibaya (SC 30/2019).

[11]            See Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) where the court held: “It would follow from what is set out above that, after it pronounces a verdict of guilty, only the disciplinary authority is mandated to move on to the part of the proceedings that relates to mitigation, aggravation and sanction.”

[12]            See Muchechetere v ZBC (Private) Limited and 2 Others (143-2021).

[13]            In Muchechetere v ZBC (Private) Limited and 2 Others (143-2021) it was held: The disciplinary authority in casu was prevented from conducting ‘the proceedings properly’ by the employer who, acting on some undefined basis, stepped in midstream of the disciplinary proceedings, and purported to complete the process itself. Accordingly, the ‘sentencing’ stage of the proceedings cannot stand and must be vacated. It is important that the disciplinary authority be allowed to properly complete its mandate.

[14]            The Court said: “What all the authorities point to is that the discretion of the employer must be respected. It is not just a question of the appellate court, in the comfort of its chambers or courtroom, deciding to substitute its own discretion merely because it holds a different view from that of the lower court.”

[15]             In Reserve Bank of Zimbabwe v Granger & Anor SC 34/01, the Supreme Court noted that “An appeal to this Court is based on the record. If it is to be related to the facts there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision. And a misdirection of facts is either a failure to appreciate a fact at all or a finding of fact that is contrary to the evidence actually presented.”

953 Views

Fair Dismissals!

Several authors have written about unfair dismissals and the consequences thereof. Our Labour Act also clearly outlines circumstances where one is deemed to be unfairly dismissed. As an example, if one is on a fixed-term contract that is terminated and replaced by another employee, automatically unfair dismissal would have occurred. This is just one example.

What is often ignored are the circumstances where dismissal is fair! Fairness as a legal principle is not as simple as the layperson may presume. It is explained from the substantive law and the procedural law perspectives. In this section, we commence by defining the two types of fairness that are recognised in our law, substantive fairness, and procedural fairness. We will then proceed to outline examples from our case law in which fair dismissals were documented. We examine the most common types of offences found in various codes of conduct in Zimbabwe.

Substantive Fairness

Substantive fairness emanates from substantive law. According to Pete et al “substantive law deals with the question of whether or not a legal claim exists in any particular situation”.[1] Substantive fairness in a disciplinary case, therefore, entails whether or not, on a balance of probability, the employee is guilty of the charges being levelled against him or her. It is not concerned about the steps so taken to prove that the employee is guilty.

Procedural Fairness

Procedural fairness comes from procedural law or adjectival law. This “deals with the procedures to enforce legal claims in civil or criminal law”.[2] In a disciplinary case, this is concerned with the steps taken to prove whether the person is guilty or not. These steps are outlined in the code of conduct and the labour act. The fact that the employee is given three days’ notice before attending the hearing, and requiring the employee to mitigate before the ultimate penalty is given are examples of procedures found in codes that ensure that there is procedural fairness.

There is a fine line between the two types of fairness and in most cases, a substantial departure from the rules that govern both types of fairness can result in the vitiation of the disciplinary hearing. As a general rule, in Zimbabwe, procedural irregularities that do not result in prejudice may be condoned by a court.[3] In the famous case between Nyahuma v Barclays Bank of Zimbabwe SC 67-05, the Supreme Court pronounced that:

“…it is not all procedural irregularities which vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.”

A typical example of a procedural irregularity that can result in the invalidation of proceedings is found in Unifreight Limited v Lighton Madembo SC 6 – 18. Here the Supreme Court found that the fact that the chairman of the hearing acted as both the complainant and the chairman prejudiced the employee of a fair hearing. This was compounded by the fact that no record of the hearing was present and that the members of the worker’s committee did not attend the hearing.

Fairness in Context

Here we assess common offences found in codes of conduct across the labour law spectrum in Zimbabwe. We review the facts and the law that resulted in the court concluding that the dismissals were fair.

We accept that each context is unique and that what the courts decided in these cases may be different from what one may face in reality. Whilst this is so, the cases discussed here provide an important guide in our quest to understand what fairness entails.

Any Act of Conduct or Omission Inconsistent with The Fulfilment of The Express or Implied Conditions of His or Her Contract

This is a common offence favoured by several employers. The offence talks about express conditions. These are conditions written down either in a contract, instruction, standard operating procedure, or policy, to mention a few. Violation of such terms will constitute an offence chargeable in terms of a code of conduct. Equally so, every contract has implied conditions of contract. In terms of the common law, every employee is expected to behave in a manner that promotes the employer’s interests. This is called the fiduciary duty of trust between an employer and an employee. Such a duty does not necessarily need to be written down because it is implied in every contract of employment.

As far as this offence is concerned, there is no “fixed rule defining the degree of misconduct that will justify dismissal”[4]. This is perhaps the reason why employers prefer this charge as what is important is that the employer proves that the conduct of the employee undermined the trust and confidence between the parties.

In Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20 the Supreme Court concluded that an employee who fails to follow a new reporting structure established by the employer can fairly be dismissed in terms of this offence. The court remarked:

“In my view, the appellants conduct cannot be regarded as consistent with the fulfilment of her employment. Her conduct undermined the trust and confidence between the parties as envisaged by her correspondence with the Chief Executive Officer. It is an implied term of the appellant contract that she my comply with orders of the respondent bank. The failure by the appellant to comply with the order, despite numerous invitations to do so made the relationship between the parties untenable. She should have complied with the directive and then taken corrective measures later. In my view, this amounted to a serious misconduct which warranted dismissal”.

It, therefore, follows that it will be substantively fair if an employee were to be dismissed because he or she acted in a manner inconsistent with the employment contract provided that the misconduct goes to the root of the employment relationship. This is shown when the conduct or omission itself warrants the inference that the offence committed undermines the trust and confidence between the parties.

Gross Negligence

The test for negligence is settled in our civil law. According to Kasvosve v Masuku & Ors HH 64 – 2018, the test is whether a reasonable person would have behaved in the same manner as the individual in question. If on a balance of probability it is found that YES a reasonable person would have behaved in the manner the accused did, then there is no offence and the employee ought to be found not guilty. If on the other hand, the answer is a NO, because no reasonable person in the position of the accused would have acted in the manner he or she did then a guilty verdict may be concluded.

Negligence tested in this form is also found in criminal matters. The so-called reasonable person test is used to assess whether one was negligent or not.

In Kasvosve v Masuku & Ors HH 64 – 2018 the court had this to say:

The principles applicable to an inquiry into the existence or absence of negligence are settled. Jonathan Burchell in Principles of Delict (Cape Town, Juta & Co Ltd) at p 86, summarises them as follows:

            “the test for determining negligence is as follows:

Would a reasonable person, in the same circumstances as the defendant, have foreseen the possibility of harm to the plaintiff;

Would a reasonable person have taken steps to guard against that possibility;

Did the defendant fail to take the steps which he or she should reasonably have taken to guard against it?

If all three parts of this test receive an affirmative answer, then the defendant has failed to measure up to the standard of the reasonable person and will be adjudged negligent.”

In disciplinary hearings, therefore, we submit that for the negligence to be “gross” it should be of such a magnitude that no reasonable person would have behaved in the manner the accused did. In CIMAS Medical Aid Society v Lindiwe Mhunduru (SC133/21), an employee who recommended the awarding of a tender to a certain construction company was deemed to be grossly negligent and the Supreme Court upheld her dismissal from employment. In this case, the court noted that a senior employee who knows of the existence of a policy but proceeds to follow a procedure that is contrary to the written policy is deemed to be grossly negligent. The court made use of the principles outlined in Rosenthal v Marks 1944 TPD 172 at 180 where it was said:

“Gross negligence (culpa lata, crassa) connotes recklessness an entire failure to

give consideration to the consequences of his actions, a total disregard of duty”.

Wilful Disobedience to a Lawful Order

This is a common offence found in the majority of codes of conduct and not surprising that the National Code of Conduct (Statutory Instrument 15 of 2006) retains this as one of the offences that can be charged under the code. The offence originates from the basic fact that an employee owes the employer a duty of fidelity in terms of which the employee is expected to further the interests of the employer. An employee is thus expected to obey the lawful and reasonable instructions of the employer.

In Innscor Africa (Private) Limited v Terrence Gwatidzo (SC 5/2015) the court had an opportunity to deal with a case involving an employee who refused to give the employer a written report as to why he had not worked emergency overtime. The employee argued that he was on an authorised off and there was no need for the employer to question why he did not avail himself to work overtime. The court upheld the dismissal of the employee. In coming to this conclusion, the Supreme Court observed that the instruction given by the employer was lawful and reasonable. It was deemed lawful because it was capable of being carried out. The court argued that the existence of a moral excuse for the disobedience does not result in the offence being less wilful or will not result in the employer’s order being less lawful. In the circumstances, the dismissal was upheld.

Theft or Fraud

Theft or Fraud are perennial problems in the modern workplace. The two charges are also in our view mishandled because they are also found in criminal law. Very often, the employers ignore the fact that the criminal law and labour law routes of disciplining a person are different routes. It has been emphasised on various forums that the fact that an employee has been charged by the state for theft and fraud does not preclude the employer from also pursuing the internal disciplinary hearing. The mistake often made therefore is where the employer waits for the criminal law processes to finish and then move to dismiss the employee. In some cases, the employee is found not guilty by the criminal justice system leaving the employer with a dilemma as to what should be done next. Very often employees who are guilty of theft or fraud are then left untouched. The best option proposed is that of pursuing the criminal law route and the labour law route (internal disciplinary hearing) at the same time. This is so because the outcome of one process does not interfere with the outcome of the other. An employee may still be found guilty in internal proceedings whilst the criminal law justice system may find them not guilty.

We submit that the criminal law definition of these two offences applies in Labour law. The definitions outline the elements that will have to be proven by the employer on a balance of probability. In terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23][5] under section 113, theft is outlined as follows:

“Any person who takes property capable of being stolen:

(a) knowing that another person is entitled to own, possess or control the property or realising that there is a real risk or possibility that another person may be so entitled; and

(b) intending to deprive the other person permanently of his or her ownership, possession or control, or realising that there is a real risk or possibility that he or she may so deprive the other person of his or her ownership, possession or control”.

The same Act outlines Fraud as follows:

“Any person who makes a misrepresentation:

(a) intending to deceive another person or realising that there is a real risk or possibility of deceiving another person; and

(b) intending to cause another person to act upon the misrepresentation to his or her prejudice, or realising that there is a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice;”

It should be remembered that whilst the criminal law definitions have been used to explain what theft or fraud this does not change the burden of proof. In ZESA v Dera 1998 (1) ZLR 500 (S) cited in Pia Ngwaru v First Mutual Health Company (Private) Limited Sc 38-19 the Supreme Court argued:

“It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a

person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. A claims money from B, B claims an order that he owes nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft.

So in a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the “balance of probability” test. ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.”

The fact, therefore, remains that, the fact that a code has an offence that is criminal in nature, does not change the standard of proof expected in the disciplinary proceedings. A disciplinary committee or authority faced with a Theft or Fraud case will still need to balance the probabilities of the accused’s guilty or not guilty.

Absence from Work for a Period of Five or More Working Days Without Leave or Reasonable Cause in a Year

This is also a common offence. The basis is that every employee is employed to render personal services to the employer. If the employee decides to be absent this will constitute a breach of the rendering of personal services.

In Cotton Company of Zimbabwe v Muchirahondo SC 262/99 the Supreme Courtfound that an employee who admitted being away without official leave was properly charged and dismissed. The court mentioned:

“There is no basis for accusing the bodies that heard Muchirahondo’s case of having relied upon the fact that he was serving a written warning for the offence of having been absent from work for three to four days without leave in finding him guilty of the offence he was charged with. Even if reference to the written warning became a factor in the assessment of guilt, it could not affect the fact that Muchirahondo admitted that he was absent from work for five or more days without leave. The fact that he was serving a written warning for previously having been absent from work without leave showed that he was aware of the requirement that he should seek leave from the employer for being absent from work. Any reasonable tribunal faced with such an admission of the elements of the offences charged would find the offender guilty as charged.”

This is a clear offence and does not require further elaboration. If any employee does not further the interests of the employer because of being absent for a period of 5 or more days, dismissal is warranted.

Gross Incompetency or Inefficiency in The Performance of His or Her Work

This offence is split into two. An employee will have to be found guilty of either incompetency or inefficiency for the dismissal to be warranted. This offence was correctly explained in Fraser Muyaka v Bak Logistics (Pvt) Ltd SC 39-17. In this case, the employee was found to be grossly inefficient because he failed to supervise his department and relied on assumptions for almost 6 months. He also failed to attend three meetings he had scheduled. In that case, the court aptly explained the two offences as follows:

“The misconduct was couched as “gross incompetence or inefficiency in the performance of his duties.” The use of the word “or” means either of the two but the requirement is that it be gross of either incompetence or inefficiency. This means for one to be guilty of misconduct, he has to be found to be either incompetent or inefficient. A distinction at law between the two is found in the fact that it can be either of the two.

The literal meanings of the two words can be useful in establishing a distinction between them. Incompetence is defined as “the lack of skill or ability to do a job or a task as it should be done.” Inefficient is defined as “not doing a job well and not making the best use of time, money, energy etc” (see the Oxford Advanced Learner’s Dictionary, International Student’s ed pp 760 and 766).”

Habitual and Substantial Neglect of His or Her Duties

For one to be found guilty of this offence the act or omission complained of should be habitual, substantial and should also constitute neglect of duties. The word habitual means that the behaviour complained of must be continual, perpetual, repeated, or frequent. It does not have to be one event. Secondly, the act should be substantial, which means it must be considerable, or material. Lastly, there should be neglect of duties. Neglect means that the employee should have shown that they do not care for their duties. Trivial and infrequent neglect of duty is not chargeable under this offence.

In Happison Sigauke v Falcon Gold Zimbabwe Limited (SC 18/2017) the Supreme Court confirmed the dismissal of an employee who had failed to have a spare key to a safe for 17 years. It said:

“The consistent failure by the appellant over this period to take any measure to secure the safe whether by replacement of locks or otherwise can only amount to habitual and substantial neglect of his duties.”

Lack of A Skill Which the Employee Expressly or Implied Held Himself or Herself Out to Possess.

This is one offence that one can commit at the point of being engaged by the employer. It is common for prospective employees to undertake that they can do certain tasks. In a world where getting a job is onerous some have found themselves having to over-promise to get a job. Most codes are alive to this problem and this offence has been taken into consideration to deal with us unfortunate situations.

In Total Zimbabwe (Pvt) Ltd. v Moyana (09-03) the job that the employee was required to perform required that he verify delivery notes after having seen and verified the contents as written on the delivery note. The employee did not do so despite the contract being clear that this was a requirement of the job. This was despite the employee has undertaken to the employer that he could work in such an environment. In upholding the employee’s dismissal from employment, the Supreme Court had this to say:

“It seems to me that in signing such an important document as a delivery note without having seen the products it referred to as  having been loaded  onto the truck, Moyana denied himself the opportunity of exercising any of the skills he had undertaken to exercise in the performance of his duties. He was in fact committing a fraud on his employer, in that by his signature on the delivery note he misrepresented that he had exercised reasonable skill by physically checking and counting the contents of the truck. He certified everything as being in order when that was not the case”.

Conclusion

We have discussed the most common offences chargeable in terms of the codes of conduct in Zimbabwe. What is important to take note of are the various elements of each offence which if proven from a substantive and procedural law perspective, results in a fair dismissal.


[1]              Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2nd ed (2013) Oxford University Press.

[2]              Peté, Hulme, Du Plessis, Palmer & Sibanda Civil Procedure: A Practical Guide 2nd ed (2013) Oxford University Press.

[3]              Unifreight Limited v Lighton Madembo SC 6 – 18.

[4]              Stella Nhari v Zimbabwe Allied Banking Group Limited SC 6 – 20.

[5]              Act 23/2004

2,346 Views

REPUDIATION OF A CONTRACT OF EMPLOYMENT

1.    Introduction

In this section, we outline the rules of contract that determine and explain the repudiation of a contract of employment. Repudiation occurs when a party to a contract shows, by omission or conduct, that they are no longer willing to be bound by a contract duly concluded by the parties.[1] It is a breach of contract.[2] The principle emanates from the common law rules upholding the sanctity of any contract.[3] In terms of these common-law rules, persons are bound by the contract that they have with others and as such contractual obligations, as a general rule, cannot be regened from. In Latin words, the rule states “pacta sunt servanda” loosely translated to agreements must be honoured.[4] It is an important aspect of employment law that one cannot afford to ignore. The discussion will also outline some of the common law principles that have been upheld in the course of judicial decision making.

2.    Intention is an important element of repudiation

It has already been mentioned that repudiation occurs when conduct or omission by one party shows an unwillingness to be bound by a contract of employment. The intention not to be bound by a duly agreed contract is thus an important element of this kind of breach. We submit that a mistake on the part of the accused party cannot lead to the repudiation of a contract. The act or conduct in question should leave a reasonable person objectively concluding that a contracting party is no longer willing to be bound by a contract of employment.[5]

The intention element of repudiation on the part of the employer is correctly captured under section 12B(3)(a) which provides for circumstances where an employee is deemed to have been unfairly dismissed. The section states that:

“An employee is deemed to have been unfairly dismissed—

  • if the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee…”

The intention element is captioned by the words, “deliberately made” highlighted above. The test is objective, and a reasonable person should conclude that the employer’s actions or omissions went to the core of the employment relationship to warrant the conclusion that repudiation has occurred. It is only when this happens that one is deemed constructively dismissed.

Several court judgements have elaborated on the circumstances that qualify as a repudiation of a contract of employment. These judgements are discussed next.

3.    Tel-One (Private) Limited v Kuyumani Zulu[6]

The major principle emerging from this case is that an employee who is on suspension and who proceeds to accept a job elsewhere repudiates his contract with the employer that suspended him or her.

In terms of the facts, Kuyumani Zulu was put on suspension on 21 February 1996. On 1 September 1997, he was employed by ZIMNAT and was employed there until he was dismissed on 12 February 1998. ZIMNAT terminated the Zulus contract upon being advised that he was still an employee for Telone. Meanwhile, Telone unlawfully dismissed him from employment, founding litigation that culminated in the awarding of damages in favour of Kuyumani Zulu. Dissatisfied with the damages the Supreme Court was called upon by the employer to adjudicate the dispute. In its decisive remarks, the Supreme Court argued:

“Firstly, the Tribunal failed to appreciate the distinction between an employee who is on suspension and an employee who has been dismissed, whether unlawfully or lawfully, and the different legal obligations pertaining to the different employees. An employee who is on suspension is under a legal obligation to avail himself for duty to his employer during the period of suspension and that if such employee takes employment during the period of suspension, he repudiates his contract of employment. See Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S).   In that case, GUBBAY JA (as he then was) said at p 150:”

As a function of the law, therefore, an employee on suspension does not have a duty to mitigate his or her loss by seeking alternative employment. If this happens, on the day he or she takes up new employment, repudiation happens with the effect of ending the contract. According to Tel-One (Private) Limited v Kuyumani Zulu SC 110/04, mitigation of loss is only available to an employee who has been dismissed. As to the effect on the damages payable to the employee who would have repudiated a contract of employment, the court ruled that the employee is entitled to damages from the time his employment was unlawfully terminated to the time he or she repudiated the contract of employment.

4.    Thomas Meikles Stores v Dorris Mwaita and Stella Phiri[7]

This case demonstrates the fact that repudiation also occurs when an employer makes continued employment intolerable for the employee. This may happen because of an unfair demotion effected on an employee.

The employees were buyers for the applicant company and in September 2004, they were advised of a restructuring exercise being implemented by the employer. In terms of this exercise, their responsibilities had been subsumed by other buyers in the company and they had to move to new positions dubbed section manager. In terms of the suggested changes, the employees’ salaries would remain the same. They would however not be entitled to a motor vehicle. They were also advised that if they were unwilling to take up the new positions the employer would pay them an exit package. Aggrieved, the employees refused the new positions and the exit package. Several communications were exchanged between the parties culminating in one letter sent to the employer whose language the employer took exception to. Both employees were charged and dismissed. The Labour Court found that the employees had been constructively dismissed and ordered their reinstatement. Aggrieved, the employer appealed to the Supreme Court.

In concluding that the employer had repudiated the employee’s contracts, the court accepted that the letter that was given to the employees on 30 September 2004 gave the employees only two choices, “to accept either demotion by a certain date or a pre-determined exit package”. No negotiations were to be undertaken. The court further accepted that since they did not report for duty as required, they were deemed to have been dismissed. It realised that the employer was attempting to force the employees to accept a demotion on the pretext of reassignment. The court also made an important finding that given the wording of the letter dated 30 September 2004, disciplinary action against the employees was no longer lawful because they had already been dismissed.

The two cases discussed above provide an insight into the various forms repudiation of an employment contract can happen. Several circumstances other than those already discussed above qualify as a repudiation of a contract of employment. On the employee’s side, repudiation can occur when the employee deserts employment or when the employee deliberately refusing a lawful instruction, to mention a few of such instances.

On the employer’s side, repudiation of a contract can take the form of failing to pay the employee the agreed wages and salaries, withdrawing a contractual benefit without consent, unilateral changes to an employee’s role. Indeed, as noted above, repudiation on the part of the employer may be a ground for constructive dismissal.

5.    Options available when repudiation occurs

Repudiation does not automatically end a contract.[8] On the part of the employee, should an employer show the unwillingness to be bound by the contract two options are available as stated in Tel-One (Private) Limited v Kuyumani Zulu. The employee can decide can enforce his or her rights without leaving employment or can accept the repudiation, end the contract, and sue for damages. In Thomas Meikles Stores v Dorris Mwaita and Stella Phiri, the court cited Joubert, General Principles of the Law of Contract, in which it is also argued that repudiation does not end a contract of employment. The one affected by the repudiation has an option to end the contract and seek legal redress.

On the part of the employer, it is our considered submission that once repudiation happens the employer must accept the repudiation and proceed to follow the necessary procedures in terms of the applicable code of conduct. This may entail engaging in disciplinary action as provided by the applicable code of conduct. In the case of an employee who would have deserted, the employer can still engage in disciplinary action. In such cases, a hearing notification should be sent to the employees last known address and thereafter a disciplinary action can be held in absentia.

6.    Conclusion

It is summarised from the overview above that the repudiation of a contract of employment happens when either an employee or an employer shows an unwillingness to be bound by an employment contract appropriately agreed by the parties. The action or omission by either party should be such that it goes to the root of the employment contract to show that continued employment is no longer tenable. The Labour Act (Chapter 28.01) provides that an employee is deemed unfairly dismissed if the employer makes continued employment intolerable for the employee. It goes without saying that an employee who is under the employ of one employer repudiates his or her contract of employment if he or she gets employed by another employer. This is so even when the employee is on suspension.


[1]           Visser & Potgieter’s Law of Damages 3ed (Juta 2012).

[2]           Hutchison & Pretorius (eds) The Law of Contract in South Africa 3rd ed (2017) Oxford, Cape Town p.

[3]           Hutchison & Pretorius (eds) The Law of Contract in South Africa 3rd ed (2017) Oxford, Cape Town.

[4]           Hutchison & Pretorius (eds) The Law of Contract in South Africa 3rd ed (2017) Oxford, Cape Town.

[5]           Hutchison & Pretorius (eds) The Law of Contract in South Africa 3rd ed (2017) Oxford, Cape Town.

[6]           Tel-One (Private) Limited v Kuyumani Zulu SC 110/04

[8]                Tel-One (Private) Limited v Kuyumani Zulu SC 110/04

2,412 Views

INTERPRETING A CODE OF CONDUCT

Labour disputes can turn on the interpretation of a code of conduct. Interpretation entails the process of construing the text of a code to come up with the true meaning of an instrument. Our courts have designated various principles that we can utilise in the process of interpreting a code of conduct. We submit that to a greater extent; these principles have similarities with the rules of statutory interpretation.

Ordinary grammatical words in the code

Words in a code of conduct provide the primary guidance and a starting point in the process of ascertaining the correct/true meaning of a code and its provisions.

The words should be given their ordinary grammatical meaning unless if this can result in some anomaly.[1] This is the same principle that courts have used to interpret legislation in several circumstances.[2]  This principle was appropriately explained in Venter v Rex[3] wherein the court noted that :

“it appears to me that the principle we should adopt may be expressed somewhat in this way: that when to give plain words of a statute their ordinary meaning would lead to absurdity so glaring that it could never have been contemplated by the legislature, or where it could lead to a result contrary to the intention of the legislature, as shown by the context or by such other consideration as this court is justified in taking into account, the court may depart from the ordinary effect of the words to the extent necessary to remove the absurdity and to give effect to the true intention of the legislature.” (own emphasis)

The sample principle, it is submitted, is available in the interpretation of a code of conduct. In Circle Tracking v Mahachi the courts buttressed this rule and mentioned that:

“The term corruption in the context of the Code must be given its ordinary grammatical meaning and not be construed within the criminal context.” (own emphasis)

In coming up with the ordinary grammatical meaning of words in a code the dictionary meaning of the words may be unavoidable as will be explained below. Once the grammatical meaning of the text has been taken into consideration other elements of the process may come in. These, depending with the circumstances, include the context of the words as well as the intention of the drafters of the code.

Dictionary meaning of words

Construing words in a code of conduct may at times boil down to the dictionary meaning of a word. This is not a new approach as courts have utilised dictionaries to come up with the correct meaning of words in a legislation. In Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd[4] it was pointed out that:

            “Dictionary definitions of a particular word are very often of     fundamental importance in the judicial interpretation of that word in a          statute or in a contract or in a will.”

A good example of where a dictionary was used to construe meaning in a code is encapsulated in the matter between Circle Tracking v Mahachi.[5] An employee was accused of carrying unauthorised passengers in a company vehicle. The employer charged him for corruption and subsequently dismissed him. The employee disputed that the act of carrying unauthorised passengers cannot be construed as corruption. The court then turned to the dictionary and mentioned:

            “The issue is whether the conviction on an allegation of corruption is proper. The word corruption is defined in the Concise Oxford Dictionary    as:

“decomposition; moral deterioration; use of corrupt practices (bribery, etc); perversion (of language, text, etc.) from its original state; deformation”.

Dictionary meaning of words thus represents a cannon that can be used to interpret a code. This is not the end, however. The context within which the words are found may also crucial in certain situations. This will be discussed next.

Context of the words in a code

It is also submitted that for the true meaning of words in a code of conduct to be construed, the context within which they are used should also be taken into consideration. Context represents such aspects as ambit and purpose of the code of conduct, among others. The importance of context is that brings out the true intention of the drafters of the code.

Illustrating the importance of context in words found in a statute is the Circle Tracking[6]  case discussed above. The court in this matter argued that:

            “The term corruption in the context of the Code must be given its      ordinary grammatical meaning and not be construed within the criminal       context. Indeed, some decisions of this Court have stressed that a Code of Conduct should be interpreted in such a way as to give effect to the   intention and spirit of the Code of Conduct.”

As mentioned, the context of the code of conduct helps in establishing the intention of the drafters of a code.

The intention of the drafters of the Code

It is submitted that all the cannons discussed so far are meant to bring out the intention of the drafters of the code of conduct. By reverting to the ordinary grammatical meaning of words in a code of conduct, one will be avoiding the mistake of interpreting these words strictly from a legal perspective.

It is accepted most codes are usually drafted by persons who are not as skilled in drafting legal documents as lawyers.[7] In a courtroom, such codes will not avoid being in the hands of lawyers. Mindful of the irony, courts have accepted that code of conduct should not be interpreted in such a manner as to give all words in it their legal meanings.[8]

Avoiding Technicalities

The process of interpreting a code of conduct should be balanced to avoid technicalities. The whole process should be guided by the general rule of resolving labour disputes which are premised on the need to avoid resolving labour disputes based on technicalities.[9]

The court in Passmore Malimanjani v Central Africa Building Society (CABS) took a robust approach and concluded that:

“Details of conduct that would constitute such offences must be viewed in the light of being examples. They could not possibly have been meant to be exhaustive. Viewing them as exhaustive would result in the ridiculous situation where someone who commits an offence that in the ordinary sense would constitute the conduct in question, e.g. dishonesty, would walk free simply because the specific offence was not listed as an offence. That could not have been the intention of the drafters of the Code, who, in general, are not schooled in the law.”

Indeed, the intention of the drafters of a code should always be taken into consideration and this would require that a code be interpreted careful manner lest we fall in the undesired trap of resolving labour disputes based on technicalities.

Conclusion

From the foregoing discussion, it can be summarised that the process of interpreting a code of conduct is equivalent to the process of interpreting a statute. One needs to be careful that codes of conduct are usually drafted by laypersons who are not lawyers. The intention of such drafters has to be construed to give content to the true meaning of a code. The process of construing a code involves taking into consideration the ordinary grammatical meaning of the words against the context as well as giving effect to the intention of the drafters.

Further Reading


[1]           Circle Tracking v Mahachi (SC 4/07).

[2]           Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited (SC 43/15).

[3]           Venter v Rex (1907 1907 TS 910).

[4]           Loryan (Pvt) Ltd v Solarsh Tea & Coffee (Pvt) Ltd 1984 (3) SA 834 (W).

[5]           Circle Tracking v Mahachi (SC 4/07).

[6]           Circle Tracking v Mahachi (SC 4/07).

[7]           See Passmore Malimanjani v Central Africa Building Society (Cabs) (SC 47/07).

[8]           See Circle Tracking v Mahachi (SC 4/07).

[9]           See Dzvairo v Kango Products (SC 35/2017).

932 Views

ZB BANK LIMITED v TIRIVANHU MARIMO SC 21/20

Introduction

The matter outlines principles that are crucial in instances where an employee acts in a manner inconsistent with his or her contract of employment.  It also reflects the delicate balance that workers committee members must maintain in fostering the rights of employees whilst being loyal to the code of conduct. It is thus the authority to the fact that a workers committee chairman will not be exonerated of unlawful conduct based on his capacity as an employee representative.

Facts

The respondent was a workers committee chairman. There was a dispute over salary increments which had resulted in a certificate of no settlement, the dispute having been brought to the attention of a labour officer. The respondent employee proceeded to sent out emails to his fellow employees disclosing percentage adjustments that had been made to their fellow managerial employees. He proceeded to encourage an industrial action as a result of which he was charged for having acted in a manner inconsistent with his employment contract.

The Law

Official Duty as a Workers Committee Chairman

The respondent employee contended that he sent out the emails to his colleagues in his official capacity as a workers committee chairman and this made his actions less of an offence. This viewpoint was upheld by the NEC Appeals Board and the Labour Court. These two forums accepted that the respondent employees breached the appellants’ policy, but the offence did not warrant dismissal.

The court however found merit in the appellant’s argument that the fact that the respondent was a chairman does not mean that he had the power to act outside the law. It thus noted:

“The right to champion workers’ rights is in my view not exercised in a vacuum, as it were, but should be exercised within the confines of the law as dictated, in this case, by the relevant code of conduct. This would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It falls to reason therefore that the respondent would not be able to hide behind his position as the chairperson of the workers’ committee should the conduct alleged against him be proved.”

Chidembo v Bindura Nickel Corporation

The supreme court took note of the arguments that had been put forward in the Chidembo matter and pointed that, the fact that one is a workers committee chairman does not mean that they will be vindicated from unlawful conduct. The court in Chidembo had decisively noted that:

“The disclosure of confidential information without the requisite authority of the employer remained an unlawful act in terms of the respondent’s code. The fact that the appellant committed the misconduct while performing his role as the worker’s committee chairperson is of no moment. This is because his status as a workers’ committee chairperson did not turn what was unlawful, into a lawful act”

The seriousness of the offence

Having noted that the employee indeed committed the offence of disclosing confidential information, the court took note of the matter between Wala v Freda Rebbeca Gold Mine where the seriousness of an offence was defined. In that matter the court had the opportunity to mention that:

“The seriousness of misconduct is measured by looking at its effect on the employment relationship and the contract of employment. If the misconduct the appellant was found guilty of went to the root of the contract of employment in that it had the effect of eroding the trust the employer reposed in him as found by the arbitrator could it still be said that the misconduct was trivial to warrant a penalty of dismissal? The appellant worked against company policy. It is a serious act of misconduct for an employee to deliberately act against the employer’s policies to advance personal interests.”

Propriety of the decision to dismiss

The court supported the view that dismissal is the appropriate penalty in the circumstances because the employer took a serious view of the offence committed by the respondent employee.

Conclusion

The bottom line is that a workers committee chairman or a representative cannot violate a company code and expect to get away with it. Once an employer takes a serious view of an offence committed an employee will not escape liability.

1,139 Views

HIRING A CONSULTANT TO PRESIDE OVER A DISCIPLINARY HEARING

QUERY:

At a certain company, the director hired a consultant to preside over a disciplinary hearing. Is this proper? The company doesn’t have a company code, it uses SI 15 of 2006.

OPINION:

My problem with using a consultant to deal with disciplinary issues when using SI 15 of 2006 stems from the definition of the “disciplinary committee” and that of a “disciplinary authority” in terms of section 2 of the Statutory Instrument (SI).

Definitions provided for in the SI

A look at the definitions used in this statutory instrument will indicate that the person or persons who should preside over a disciplinary case should be from the same organisation. This must be someone who is part and parcel of the organisation.

Let’s have a look at the definition of a disciplinary committee as a starting point. Its states:

“disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees’ representatives, to preside over and decide over disciplinary cases and/or worker grievances. (Own Emphasis)

The definition is straight forward, a committee must be made up of employer and employee representatives. A consultant in my view is neither of the two. It is submitted that the words “to preside over and decide over disciplinary cases and/or worker grievances” do indicate that such committee is not there to preside over a single case. It should be or it would have been established to deal with all cases that happen at such an establishment. I don’t think a consultant or even a committee hired to deal with one case would be within the definition of the SI.

With regards to a disciplinary authority the definition is precise:

“disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace;

This authority must be someone or some committee “dealing with” matters in a works place. The words “dealing with” do not denote a single case. This would be someone or a committee specifically tasked with the business of dealing with such issues as a matter of course. Again, one consultant hired to deal with one case will not fall within the definition of authority as per the SI.

Intention of the legislature

It is my view that the intention of the legislature must have been to preclude anyone from outside an organisation from dealing with disciplinary cases. If the intention was to allow anyone outside an organisation the statutory instrument would have been more specific. This, in my view, confirmed by section 8 of the SI which section deals with internal appeals. The section says:

“Depending on the size and circumstances of an establishment or a workplace, an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employees or worker representatives, an Appeals Committee to preside over and decide on appeals.” (Own Emphasis)

An appeal should be handled by someone within an organisation. The legislature intended that the whole process be handled internally before being dealt with outside the organisation on appeal or review. It would be absurd to think that the SI allows an initial hearing to be handled by an outside person and whereas the appeal should be dealt with by an internal person.

Impartiality

 Besides the above, I believe that disciplinary cases require that someone who is not an interested party preside over them. Once someone hires a consultant, the inescapable feeling is that this consultant has been hired to dismiss an employee at all costs. Such a consultant will be paid by the employer. He or she becomes an interested party who is bound please his or her master.

At the end of the day, it all boils down to one legal principle, “Not only must Justice be done; it must also be seen to be done”

Conclusion

Once a consultant is hired to discipline or dismiss an employee, justice would have failed, and such proceedings will be a nullity.

1,347 Views

British American Tobbaco Zimbabwe v Jonathan Chibaya SC 30 /19

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Introduction

The use of expert evidence may at times become inevitable in a disciplinary hearing. This case shows the circumstances in which expert evidence is acceptable and how courts come to their final judgments when presented with expert evidence. This case also illustrates the extent to which disciplinary cases can become complicated in instances where evidence to be relied on is in the hands of third parties who are not willing to cooperate.

Facts

Money was unlawfully withdrawn from a company account. One instruction to withdraw the money was used twice. This meant that one transaction was legit, and the other one was fraudulent. The company noted that the withdrawal slips used in the fraudulent transaction bore personal details of the respondent. This led to the suspension and subsequent dismissal of the respondent from the employ of the appellant. On appeal, the Works Council which heard the appeal tried to get more evidence from the bank to no avail. It then concluded the case based on a report that had been compiled by a handwriting expert. The NEC appeal forum, as well as the Labour Court, set aside the dismissal noting that the evidence was inadequate. The decision of the Labour Court thus founded the Supreme Court appeal.

Reasoning

The court, as a starting point, had to determine whether on a balance of probabilities a case had been proved against the respondent. The Labour Court had found that the evidence presented had pointed to the involvement of banking staff and not the respondent. The court made use of the authority found in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H), 176 in which the court held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”

It went to realize that the Labour Courts view was right in that the evidence pointed to the involvement of banking personnel. It was in this regard that the court went on to state that:

“The finding was that the probabilities pointed to the direct involvement of a bank official in the dishonest activities, particularly because the transaction took place at 8.00am, the exact time that the bank would have been opening its doors to the public. No evidence placed the respondent at or inside the bank at the relevant time. The bank already had the respondent’s personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the bank’s possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the bank’s possession for some thirteen days before the second withdrawal was made. The bank’s failure to cooperate unfortunately meant that a number of possibilities cannot be discounted in this matter.”

Own comment

The paragraph above points to the fact that this disciplinary hearing became complicated when the bank failed to avail the necessary evidence as requested by the Works Council. Various possibilities which could not point to the respondent became inevitable. It is therefore advisable that practitioners dealing with disciplinary issues must ensure that they avoid making use of evidence that results in many possibilities of what could have transpired. In Jonathan Chibaya, the burden to prove that the respondent was the culprit became onerous.

The court proceeded to analyse the probative value of the expert evidence presented to it. The most important legal principle that the court relied on was that a court is not compelled to blindly accept evidence simply because it has been presented by an expert. A court is thus duty-bound to make its own inferences. Having made these observations; the court proceeded to conclusively remark as follows:

“In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent’s signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.”

Determination

The appeal was dismissed with costs.

Own Comment

The court’s ruling that the evidence relied on to terminate the employees’ contract was inadequate cannot be condemned. The expert had relied on photocopied documents. This meant that important information had been left out. There was a high chance that the respondent had been wrongfully convicted.

The finding that the court will not blindly follow expert evidence is a warning shot. Practitioners dealing with disciplinary issues must be careful when using expert evidence.  I have seen instances were forensic expert reports as well as financial audit reports have been used as evidence to dismiss employees in a hearing. I would advise those who contemplate using such reports to extensively go through this judgment before making knee jerk decisions to dismiss an employee.

1,097 Views

Emmanuel Masvikeni v National Blood Service Zimbabwe SC 28/19

“In our view, the appellant, by deliberately absenting himself without leave from the hearing, waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing. In these circumstances, we do not feel that the failure by the respondent to strictly comply with the Regulations operated to vitiate the disciplinary proceedings.”

Moyo v Rural Electrification Agency SC-4-1

Introduction

Disciplinary hearings will always recur in the life of a Labour Relations Practitioner or a Labour Lawyer. Not only do they recur, but they also come in all shapes and sizes. Emmanuel Masvikeni v National Blood Service Zimbabwe is important in illustrating the effects of not attending a disciplinary hearing as well as the standard of proof required in such inquiries. I will proffer the argument that employees in the position of the appellant ought to be protected. To illustrate this kind of protection I will expound on the South African position in similar matters.

Facts

The appellant was employed as a Blood Procurement Manager. He was accused of circulating emails that contained divisive and damning allegations against certain members of staff. He was duly notified of the disciplinary hearing but chose to abscond for no apparent reasonable cause. The hearing subsequently found him guilty and prescribed his dismissal as the appropriate penalty. All his appeal efforts internally and the Labour Court failed as all the forums concluded that he had been dismissed lawfully.

The law and findings

For starters, the court emphasized the legal position found inMoyo v Rural Electrification Agency in terms of which once an employee fails to attend a hearing, he or she cannot challenge the composition of the disciplinary committee that decided on the hearing. It argued that he should have attended the hearing and thereafter challenge the composition of the disciplinary authority.

The employee denied having authored the emails. The court had to decide whether from the record it can be shown that the employee was the author of the emails or not. It noted sections of the record in which the appellant had admitted to authoring these emails. This finding confirmed what the Labour Court had also found. The supreme court thus held that:

“In light of this exchange, on a balance of probabilities, the appellant admitted, through his legal practitioner, that he is the one who published the emails in issue. He seems to prevaricate and avoid giving simple or straight forward answers.” (Page 10)

This case thus illustrates the standard of proof in disciplinary hearings. The court is bound to look at the most likely version between what is presented by the appellant and that which is put forward by the respondent in reply. This accords with the position found in Lewendo Ent. (Pvt) Ltd v Freight Africa Logistics (HC 2416/14) in which the court reasoned that:

The standard of proof in civil proceedings is proof on a balance of probabilities. What this brings to mind is a mental picture of the scales of justice, the embodiment of the underlying principle that underpins the justice system. It entails a balancing of the plaintiff’s claim against the defendant’s defence.  It necessitates a decision of which of their versions of events is more likely to be true. In other words which version is more believable, or most likely to have transpired, than the other? It is my view that the preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff’s version being the correct one as opposed to the defendant’s, or vice versa. In making this determination we look at the pleadings, at the documentary evidence, at what the parties’ representatives said and did when they were in the witness stand, and finally at what the law says in light of the evidence that we will have accepted. Then we determine what ought to be done in order to do justice between the parties.”

Determination

The court concluded that the appellant had been correctly dismissed and it set aside the appeal.

Own Comment

I will endeavour to point out that the labour laws in Zimbabwe should evolve and protect employees in the position of the appellant. The basis of my assertion is the fact that the employee was charged for “accusing his superior of nepotism in the anonymous letters he published”. In my view, the appellant was whistleblowing and bringing to the attention of management what he considered unprofessional behaviour. It is unfortunate that we do not have laws that protect such employees as the appellant. This was going to be a different case had this happened in South Africa.

South African perspective

In South Africa, the Protected Disclosures Act (No 26 of 2000) protects employees who disclose information about unlawful or corrupt conduct by their employers or fellow employees. This means such employees cannot be dismissed when they disclose such matters. In a matter between the City of Tshwane Metropolitan Municipality V Engineering Council of South Africa And Another, an employee had been advising the employer about the dangers of appointing unskilled and inexperienced people in dangerous work. After not getting cooperation from the employer he decided to send an email to the employer advising him of the conduct. He then copied the Engineering Council and the Department of Labour. The employer decided to engage in disciplinary action against, but the authorities decided that this was a protected disclosure and that the employee could not be subjected to disciplinary action.

The South African position is thus commendable. The law protects employees if they disclose information that exposes management. This also, arguably, fosters democracy in the workplace.

It is submitted that unless and until our laws are evolved to afford such protection, employees will continue to be subject to conduct that at times may be tantamount to victimization.

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REFRAINING FROM ATTENDING A DISCIPLINARY HEARING

One of the biggest mistakes an employee can ever make when accused of having breached company rules is to abscond a disciplinary hearing. Practitioners dealing with disciplinary issues can also fall into the trap of not properly handling situations that arise when an accused employee refrains from attending a disciplinary hearing. Employers and employees, alike, should be well versed with the legal implications of failing to attend a disciplinary hearing. In this article, the serious consequences that flow from this wing of our labour law will be discussed. The right to be heard which forms the foundation of every disciplinary process will be explored for in the first place.

The right to be heard

The cornerstone of every hearing, whether in criminal or civil spheres, is the right to be heard. This right is encapsulated in the maxim audi alteram partem translated to “hear the other side”. In terms of this principle, an impartial tribunal must hear a dispute and come up with an impartial determination/resolution (See the article on impartiality). This principle also entails that an employee must be arraigned before a disciplinary tribunal and be given an opportunity to state his or her case. The net effect of this principle is that when it is violated or in other words if the employee is not awarded the opportunity to be heard, the resultant proceedings may be impugned by the courts.

So important is the audi alteram partem principle that our courts in Taylor v Minister of Education & Anor[i] highlighted that:

“The maxim audi alteram partem expresses a flexible tenet of natural justice that has resounded through the ages. One is reminded that even God sought and heard Adam’s defence before banishing him from the Garden of Eden. Yet the proper limits of the principle are not precisely defined. In traditional formulation, it prescribes that when a statute empowers a public official or body to give a decision which prejudicially affects a person in his liberty or property or existing rights, he or she has a right to be heard in the ordinary course before the decision is taken.”

The view expressed by the courts in Zimbabwe is also observed by courts of other jurisdictions. In this regard in the Labour Court of South Africa and, in a matter between Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others[ii] the court noted that:

“For these reasons, I found that the principles of natural justice had not been observed. Failure by the Department and the respondents to apply the audi alteram partem rule has constituted a procedural impropriety vitiating the agreement in so far as it affected Mr Kock. Accordingly, the argument advanced on behalf of the respondents had to fail.”

Given the importance attached to this principle, the question that begs a response is, what then are the consequences attached to an employees absence from a hearing? This will be dealt with within the next section.

Waiver of the right to be heard

The importance of the right to been outlined above. Despite being important in legal proceedings, this right can be waived or be lost in certain circumstances. Failure to attend a hearing is one of the ways in which the right to be heard can be lost. It is important to note that this failure must be imputed on the employee for the same to lose the right.

The matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo[iii] clearly explains how the waiver of the right to be heard can emanate from the failure by the employee to be present at a hearing. The court in this matter decisively remarked as followed:

“The facts before the court a quo established beyond question that the respondent was given notification of the hearing date. He successfully negotiated for a date convenient to himself but defaulted on the date of hearing. His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer. By deliberately absenting himself from the hearing the respondent irrevocably waived his right to be heard.”

This matter shows that when an employee has a valid reason for not attending a disciplinary hearing such a reason will have to be communicated to the employer. Once communicated the employer must acknowledge the reason and excuse the employee from not attending the hearing. In practice, the disciplinary committee or official is the person who receives such communication and who then excuses the employee. The role of HR in this instance is to facilitate the communication and the documentation that will accompany such permission.

Evidentiary Burden

One who alleges that an employee has deliberately absented himself or herself from a hearing has the onus of proving the same. Evidentiary burden entails an obligation to produce the requisite evidence.

This obligation points to the need for practitioners handling disciplinary proceedings to keep adequate documentation. An important document in this regard is the “hearing notification”. This is the document that tells the employee to attend a hearing at a certain place and time and to respond to the allegation so raised. Another important document is the “hearing postponement” document. This is the document that will show that a hearing has been postponed, the reasons thereof as well as the date and place of the next hearing. These documents differ depending on the industry and institution but the principles behind them remain the same. These are the documents that will show whether an employee was aware of the hearing and whether the failure to attend the hearing can be imputed on the same employee.

To illustrate the importance of such documentation I will refer to a matter between Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo. The court took notice of the contents of a hearing notification and realised that:

The notice to appear before the disciplinary committee dated 14 December 2011 advised the respondent of his rights and cautioned him that in the event of him defaulting, the hearing would proceed in his absence.

It is submitted that in the absence of the documentation referred to in this matter the employee would have managed to get away with a clear default. That said, I will hasten to mention that Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo should not be used as authority for failing to recognise genuine reasons put forward by employees when they cannot attend a disciplinary hearing. This aspect will be dealt with next.

The need to trade with caution

The above sections highlighted that a right to be heard is imperative in disciplinary proceedings and that this right can be waived if the employee is at fault. In this section I will reconcile what has been discussed so far with the remarks by the court in the Aloyce Roy Stevawo case when it said:

“His request for a further compromise by email could not absolve him from attending the hearing unless it was granted by the employer.” (Emphasis Added)

Does this mean that the court/tribunal can ignore any reason put forward by the employee unless permitted by the employer? The answer is no, it is submitted.

Factors such previous conduct of the employee in question and the actual reason put forward by the employee will have to be taken into consideration in determining whether the permission to be absent from a hearing is to be granted. These are not the only reasons. What is needed is for the disciplinary authority and practitioners dealing with the discipline to approach the employee’s absence and the reasons put forward with an open mind. If the reason put forward by the employee is such that one can infer that the situation was beyond the control of the employee, then it will only be fair for the hearing not to proceed and foster the audi alterum paterm rule as discussed above.

Conclusion

The discussion in this article dealt with situations were employees decide not to attend a disciplinary hearing. The effect of this absenteeism has also been highlighted together with the need to handle such absenteeism with caution and an open mind. Whilst the employer has the right to accept or refuse the reasons put forward, for not proceeding with a hearing, it is always important to trade on the side of caution. This is especially true if the employee is facing circumstances beyond his or her control or if the employee is resolving issues to do with legal representation.

SOURCES

[i] Taylor v Minister of Education & Anor 1996 (2) ZLR 772

[ii] Kock and Another v Department of Education Culture & Sport Province of the Eastern Cape and Others (ZALC 47 (30 March 2001)

[iii] Zesa Enterprises (Private) Limited v Aloyce Roy Stevawo (Sc 29/2017)

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Muparaguda v Commercial Workers Union of Zimbabwe (SC 55/18)

“There having been no irregularity in the manner in which he uplifted the suspension, the upliftment of the suspension was perfectly lawful and binding. An employer who elects to pay an employee during the course of disciplinary proceedings voluntarily assumes an obligation from which he cannot unilaterally wriggle out without first re-suspending the employee without pay. Although it was within the appellant’s discretion to re-suspend the respondent without pay, it did not exercise that option until the contract was lawfully terminated on 26 April 2013. For that reason, the judgment of the court a quo upholding the arbitral award of 26 April 2013 cannot be faulted.”

Introduction

At times it becomes necessary to suspend an employee without pay in order to carry out an investigation into an allegation that the employee has breached workplace rules. This is called a precautionary suspension. There are also instances where an employee will have to be suspended as a function of a penalty imposed in a hearing. This is called punitive suspension. Muparaguda v Commercial Workers Union of Zimbabwe deals with a precautionary suspension. It answers the daunting legal question as to whether an employee is entitled to remuneration between the time of suspension and the time of his dismissal.

Facts

The facts of this case can be summarised as follows:

  1. The employee, Muparaguda, was employed on the 19th of January 2009.
  2. On 12 October 2009, he was suspended without pay following allegations of breach of the National Employment Code of Conduct, SI 15 of 2006.
  3. On 3 November the hearing official referred the matter to the General Secretary noting that he was unable to finalise the matter.
  4. The General Secretary wrote to the employee informing him that his suspension without pay had been uplifted and that he was now an employee on suspension with pay.
  5. On 30 November 2009, the General Secretary dismissed the employee pursuant to a request by the hearing official who had indicated that he could not finalise the matter.
  6. The matter was brought before a Labour Officer who made a ruling nullifying all the proceedings. He proceeded to hear the matter afresh and made a ruling that the dismissal was unfair for want of compliance with substantive and procedural fairness requirements of the National Employment Code of Conduct, SI 15 of 2006.
  7. The date of award, 26 April 2013, was deemed to be the effective date of the employee’s termination and that he be paid his salary and benefits from the date of suspension to the date of the award. The appellant was not happy with the verdict given by the labour officer and appealed to the Labour Court.
  8. The employee was also not satisfied with the verdict given by the Labour Court thus founding an appeal to the Supreme Court.
  9. At the Supreme Court, the only legal question was whether the employee was entitled to a salary from the date of suspension to the date of lawful dismissal, from 12 October 2009 to 26 April 2013.

Reasoning

The Court reasoned that there was nothing wrong with the General Secretary altering the suspension from being an employee on a suspension without pay to an employee on a suspension with pay. This was considered to be an administrative function and not a disciplinary action. This administrative function was permissible in terms of the constitution of the employer as the General Secretary had the discretion to suspend an employee with or without pay.

The court thus reasoned that when the administrative action of the General Secretary was put into effect, the status of the employee changed to that on suspension with pay. This, therefore, meant that when the arbitrator nullified the proceedings, the parties reverted to the status quo ante with the employee being one on a suspension with pay. The court thus decisively remarked as follows:

“Thus, the respondent could not have reverted to being an employee on suspension without pay because that status no longer existed.”

Verdict

The appeal was dismissed.

Own Comment

This judgment was well reasoned, and the legal principles articulated in this case are clear cut. If there are irregularities necessitating the nullification of disciplinary proceedings, the employee reverts to the status he held before the nullification of the proceedings. In the present case, the last status the employee held was that of an employee on suspension without pay. This was the status he reverted to. This was although the employee had been previously suspended without pay and benefits at one point.

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