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