POTENTIAL PITFALLS ARISING FROM APPLICATION OF SI 15 OF 2006 & HOW TO OVERCOME THEM
- Nature and composition of the adjudicating authority
- An employee can object to the nature and composition of the Adjudicating Authority. The objection is invariably influenced by the misconception that whenever 2 or more people are appointed to preside over a disciplinary hearing, they are appointed as a Disciplinary Committee as opposed to a Disciplinary Authority
- However, under SI 15 of 2006, an employer has an option to constitute a Disciplinary Committee or a Disciplinary Authority to preside over a disciplinary hearing. If the employer settles for a Disciplinary Committee, the committee must be constituted by representative of both the employer and the employee[1]. If the employer constitutes a Disciplinary Authority instead of a Disciplinary Committee, the employer exercises discretion on the composition of such Disciplinary Authority and the appointment process[2]. This means a Disciplinary Authority can be constituted by one or more persons. In Crispen Madziyauswa v ZFC Limited & Another SC /73/15 the Supreme Court stated as follows in relation to SI 15 f 2006;
“It seems to me that whereas the National Code has stipulated who should constitute a disciplinary committee, the composition of a disciplinary authority has been left to the discretion of the employer”
See also National Engineering Workers Union (Newu) v Ntombizodwa Dube SC 01/16.
- Thus, the employer’s counsel must know the distinction between a Disciplinary Committee and Disciplinary Authority so that they can easily counter the aforesaid potential objection. The adjudicating authority must also introduce itself from the onset and highlight the capacity in which it sits to avoid misunderstandings that may create a basis for the objection.
- Failure to conclude disciplinary hearing within 14 days from date of suspension of employee
- The case of Nyoni v Secretary for Public Service Labour and Social Welfare & Anor 1997(2) ZLR 516, 522G-523 A-B and Posts and Telecommunications Corporation v Zvenyika Chizema SC 108/04 make the point that delay alone cannot justify reinstatement and that delay merely gives the aggrieved party the right to the remedy of a mandamus to enforce due compliance with any time limits.
- Objections based on delays in concluding a disciplinary hearing timeously are normally raised if an employer prefers multiple charges against the accused employee even in those circumstances where the employer has evidence to prove only one (1) or two (2) charges.
- The best way to avoid delays arising from unnecessary multiple charges is to prefer only those charges which the employer party is able to substantiate with admissible evidence. That way, the employer avoids calling several witnesses thereby curtailing the proceedings. If multiple charges are warranted, the employer must try and get the employee to waive the 14-day period, preferably upon commencement of the proceedings so that the disciplinary hearing can be conducted without worrying about the 14-day timeline.
- Conduct of disciplinary proceedings: Disciplinary Authority/Committee challenged for alleged bias in favour of the employer party
- In order to overcome this hurdle, the employer must conduct a disciplinary hearing in a manner that is fair, impartial and at all times observe principles of natural justice. The rules of natural justice in such a case are that the party concerned – (a) must be given adequate notice; (b) must be able to present his/her side of the story, and (c) should be allowed to call witnesses if he/she so wishes. See Musarira v Anglo America Corporation SC 53/05; Mupandasekwa v Green Motor Services (Pvt) Ltd SC 30/15.
- Production of documents/exhibits by either party during the hearing.
- In relation to this, the guiding principle is that the hearing must be conducted in a fair manner without following strict procedures like the ones that are observed in conventional court proceedings. In Crispen Madziyauswa v ZFC Limited & Another[3], the Supreme Court said;
“In any event, this court has time after time emphasised the need for flexibility in the conduct of disciplinary proceedings in which the overriding principle is that disciplinary tribunals must conduct an enquiry. The rules of natural justice require no more than that the domestic tribunal acts according to common sense precepts of fairness. See Dulys Holdings v Chanaiwa 2007 (2) ZLR 1 at 6A-B”
- Burden of proof /onus: acts of misconduct with criminal connotations e.g the misconduct of theft or fraud provided for under sec 4 (d) of SI 15 of 2006.
- Unlike in a criminal court set up where the prosecution is required to prove the guilty of an accused person beyond a reasonable doubt in respect of a charge of theft or fraud, different rules apply when theft or fraud is preferred against an employee as an act of misconduct as opposed to a criminal charge. In the context of misconduct allegations, the employer bears the less onerous burden to prove the accused employee’s guilty on a balance of probabilities. See ZESA v Dera 1998 (1) ZLR 500 (S) & Rujinga v Old Mutual (Pvt) Ltd SC 122/23. This simply requires the presiding officer to settle for a finding or conclusion which accords well with probabilities arising from the evidence. The employer’s counsel must therefore know the level of proof required to sustain labour misconduct allegations in order to counter arguments premised on alleged insufficient proof.
Melusi Moyo: Partner
Head of Litigation & Labour Law Department
Edited by: Florance Mabungu : Managing Partner
[1] Section 2 of the Labour (National Employment Code of Conduct) Regulations 2006 (SI 15 of 2006)
[2] Section 2 of SI 15 of 2006 does not stipulate the composition of a disciplinary Authority
[3] supra