Davies Ndumiso Sibanda
MANY people do not attend disciplinary hearings and later appeal arguing they were not given the opportunity to be heard, but end up disappointed as the courts throw out their appeals.
The right to be heard at a disciplinary hearing is not an absolute right. It is a right that can be irrevocably waived or forfeited when the beneficiary is at fault. This position was given by the Supreme Court in the matter Zesa Enterprises (PVT) LTD V STEVAWO – SC 29/2017 where the court dealt with the right to be heard in brief outline. Stevawo was notified of date of a hearing against him but he asked for a postponement in order to get a lawyer. The request was granted. He was told in the next set down date the hearing will proceed whether he attends a day before the set down date. He did not attend. He was dismissed. The Labour Court ordered reinstatement saying his right to be hear had been violated. This position was overturned by the Supreme Court.
The court held, the right to be heard is not absolute immutable rule of law. It can be waived and forfeited where the beneficiary is at fault. By absenting himself from the hearings the employee irrevocably waived his right to be heard. The disciplinary committee was within its rights to proceed without the employee. The court said, “In light of his deliberate default from the hearing, the disciplinary committee was within its rights in proceeding with the hearing in his absence as previously advised. The respondent cannot be heard to complain when he deliberately absented himself from the hearing with the full knowledge that the disciplinary hearing was going to proceed in his absence. He voluntarily elected not to attend the hearing. He has no one to blame except himself, volenti non fit injuria. (If you place yourself in the way of harm you cannot bring a claim against the other party)
Earlier, in Moyo vs in 2014, the SP had dealt with a case of Moyo vs Zimbabwe Electricity Agency Judgment No SC 4/14, where it was said Moyo should have complied with the requirement to attend the hearing. The SC highlighted rights that one loses if he does not attend the hearing. These included the right to challenge the disciplinary proceedings, which he was arguing were not procedural. It was said 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.
This clearly shows that where one is unable to attend a disciplinary hearing for whatever reason he should seek postponement and such postponement should be granted before absenting themselves. The judgement also brings up the fact that when one is on suspension, he is still an employee and as such if he wants to travel outside the country he would have to seek leave of absence from the employer and where dates of the hearing are known or even where they are unknown, request for the hearing to be set when he or she is available and only leave when permission has been granted.
Another case to look at on the same subject is Masvikeni VS National Blood Services Zimbabwe. – SC 13/15 where Masvikeni deliberately absenting himself from a disciplinary hearing after he had been notified and later on appeal challenged the conduct of the disciplinary hearing. The Supreme Court dismissed his challenge and said “It is common cause that the appellant did not attend the disciplinary hearing. For that reason, his decision to challenge the composition and appointment of the committee at the appeal stage was no longer available to him. Such objections could only have been raised at the disciplinary hearing, which he opted not to attend.”
In conclusion, failure to attend a disciplinary hearing without authority means the disciplinary hearing may proceed to your detriment and no grounds of appeal can include a challenge on the conduct of the disciplinary hearing.