Davies Ndumiso Sibanda, Labour Matters
MANY employers conduct disciplinary hearings in a haphazard manner wrongly believing following Code of Conduct procedures is not important.
While the employer has the right to discipline employees, that right is regulated as it can only be exercised within the confines of the appropriate Code of Conduct.
The appropriate Code of Conduct is one that is applicable to the workplace.
In Zimbabwe, we have three different types of codes of conduct. The first one is the National Employment Code of Conduct, which is applicable where there is no in-house code or to managerial employees where non-managerial employees are covered by the NEC Code of Conduct.
Second type is the NEC Code of Conduct which covers non-managerial employees only where there is no in-house Code of Conduct covering all employees.
Finally, there is the in-house Code of Conduct which is negotiated with both managerial and non-managerial employees and supersedes all other codes of conducts.
While the Supreme Court has said matters of procedure can be ignored where there was no prejudice, there are many cases where the fairness of failure to follow procedure will be put to a test and the employer will lose the case.
In STUTTAFORDS REMOVALS VS NYAKUTSIKWA – SC 103/2002, the Supreme Court dealt with a matter where an employee was not charged in terms of the Code of Conduct.
The Judge said, “The respondent in this particular case was not properly charged. To call an employee, ask him a few questions then impose a penalty is certainly not a fair hearing.
“Companies that have Codes of Conduct should follow the procedure according to those Codes. An employee charged under a Code of Conduct should be informed of the actual provisions of the Code under which his conduct falls. That, after all, is the purpose of having these Codes.”
This judgment highlights the fact that a hearing should be conducted as set out in the Code of Conduct so as to observe the principles of natural justice that require a proper, detailed inquiry be conducted.
Further, the judgment brings up the importance of proper citation of the actual provisions under which the conduct falls.
This is to allow the employee to prepare his defence and guide the disciplinary authority accordingly.
A lesson from this judgment is that where employees are promoted to managerial positions, they must be thoroughly trained on the use of the appropriate Code of Conduct and must also be exposed to discipline law.
In conclusion, employers have to conduct hearings as guided by the Code of Conduct in terms of procedure and citation of charges and charges must be appropriate as guided by the Code of Conduct.