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.”

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