Win Labour cases and save thousands- Understanding procedural justice and disciplinary hearings.

One close of my close connections was hauled before a disciplinary hearing and she was scared to death. Tearfully, she called me deep into the night whilst sleep had already stole me.

“Farai, I am in trouble!” she screamed tearfully through the phone.

“What trouble, my friend?” I asked her with a husky voice.

“They are baying after my blood, Farai!” she said and stopped for a while as tears chocked her voice. “I am going home and will soon be jobless!”

“This is 10pm, my friend.” I said rubbing my eyes. “I am already asleep. I will call you first thing tomorrow morning”

“Farai, do you have a heart?” she said with a shaking and desperate voice.

“Yes I do my dear?” I replied.

“So please help me!” she replied frantically like a stuck pig.

“Okay let us talk.” I said rising up from the bed. I walked to the door and switched on the light. “Well, let us discuss, please grab a pen and a notebook.”

So many employees are unfairly dismissed or have their lives threatened at work by their co-workers just like this friend of mine. Disciplinary hearings are not always the solution and can sometimes be psychologically damaging to employees! Some of the disciplinary hearings or dismissals are premeditated and are masked with dark workplace wars that are clogged with deceit. More often companies lose out a lot of thousands of dollars because they dismiss someone unfairly or treat someone badly at work. More potential company revenue goes unaccounted because of dampening employee morale.

Today, I shall discuss with you on the necessary procedures that an employer needs to take when conducting a disciplinary hearing as governed by the Labour Act Chapter 28.01 as well as the SI 15 of 2006 which is the model code of conduct. I shall also make reference to SI 2016-072 - Labour (Employment Code of Conduct National Employment Council for Schools Development Associations and Committees in Government and Council run Schools) Regulations, 2016.

If the employer does not follow the proper procedures when conductng a disciplinary hearing, then the employer can be found wanting in terms of the tenets of procedural justice and natural justice. Procedural justice refers to a situation where an employer does not follow the proper procedures as governed by the law. Procedural justice is based on the fact that having fair procedures or processes will ensure that fair outcomes shall be met.

The constitution of the republic of Zimbabwe section 69 states that every person has a right to a fair hearing. The same constitution provides that every person has a right to be heard and that every person has the right to fair and safe labour practices and standards. In such circumstances, if the employer does follow the correct procedures as provided by the law, then the employer will be operating in   ultra-vires with the law.

There are many cases that we can make reference to were proper procedures were not met and the employer was later found not to have made a fair hearing.  This is what is called procedural justice.

 In circumstances were there is ‘arbitrary exercise of power’ then the case may be regarded as that there was no natural justice observed in the process. So the fundamentals of natural justice state, that there should be, ‘Audi alteram partem’.   This principle means no person who is accused shall be condemned without being given enough chance to defend himself or herself.

The other key fundamental of natural justice is ‘Nomo judex in causua sua’ which means that no-one can be a judge of his or her own case! There is no decision that can be regarded as valid if there was the any intrusion of financial considerations or any other conflict of interest by the problem owner. The complainant can never be a decision maker in a disciplinary hearing! If the employer does that then the law will be found in contravention of principles of natural justice.

 To illustrate this, there is a case law to make reference to. The employer lost the case and had to face the music of not following the proper procedures. A case in point is the case of Duly Holdings v Chanaiwa (68/05) ((68/05)) [2007] ZWSC 17 (08 July 2007), the respondent who was employed as a Branch Manager was given a lawful instruction by The Managing Director, Mr Papalexis that he was no longer authorised to leave the branch or play golf without the authorisation of the Finance director or that of the Managing Director.

The respondent requested for time to and play golf but was not granted. He then requested for time to go to the bank for twenty (20) minutes and permission was granted. The respondent left for the bank and did not return to work. The next day which was a Thursday, the employee absconded from work and did not come back.

The employee was suspended by Mr Papalexis, the Managing Director. A disciplinary hearing was conducted and the Managing Director sat on the panel as the Chairperson. During this hearing, the Finance director, Mr Mutyambizi sat as a management representative. The employee was dismissed on 25 March 2002 and an appeal was later on held which he lost again. In the appeal, Mr Mutyambizi who was the Finance Director (and a management representative during the first hearing) also acted as a management representative at the instruction of Mr Papalexis, the Managing Director.

The respondent then appealed to the Labour Court (which is at the same level with the High Court in Zimbabwe) and he won the case about five years later. It was held that the employer had violated the laws of natural justice in the way the disciplinary hearing was administered. Therefore it was ruled that the employee was wrongfully dismissed and hence it was ordered that he be reinstated with full salary and benefits. Failure to do so the appellant was supposed to pay him damages in lieu of reinstatement!

Let us examine this case, the employee was not supposed to abscond from work. The employee was insubordinate as he did not listen to lawful instructions. He definitely had a case to answer! However the employer failed to on the principles of natural justice and did not properly follow the proper procedures (procedural justice) that are required when one is conducting a disciplinary hearing! These are basics that one needs to follow and if they are not followed the employer may be found wanting!

Common pitfalls associated with natural and procedural justice

As usual I am a pragmatist, so I will offer you relevant and practical ways of managing the situation.

1.   Disciplinary hearings are not always the solution to industrial relations issues.

Whenever one is faced with workplace dispute, employers or management should not rush to punish an employee or call for a disciplinary hearing. Making disciplinary hearings is not only costly in terms of times lost or ill-informed decisions but are psychological harmful to employees. These hearings can thus lead to employers loosing huge sums of money. When an employer is faced with an industrial relations issue, they should first try to have dialogue first and try to understand employees.

Martin Luther King Jr once said, ‘Men often hate each other because they fear each other; they fear each other because they don’t know each other; they don’t know each other because they cannot communicate; they cannot communicate because they are separated!’

Composition of the disciplinary hearing panel

The SI 15 of 2006 section 2 defines a disciplinary committee and authority. A disciplinary hearing or authority should fairly constituted and as per laid out employment code of conduct. The employer should ensure that there is no direct conflict of interest at all cost. Repercussions of doing that may result in the employer facing a potential financial lose as seen in the case of Duly Holdings v Chanaiwa (68/05) ((68/05)) [2007] ZWSC 17 (08 July 2007).

Some key things to observe is that the person who will be raising the complaint should not be a management representative, there should equal representation between management and employees plus a Chairperson. There should be no interference with witnesses because doing so may result in making the process unjust.

I also advise the employer to ask the accused and complainant if they are comfortable with the disciplinary panel. If he or she is not comfortable with the panel, then they should state that in written format as to why they have their position. This allows the employer in solidifying his or her own case.

The process should not be pre-determined or driven by personal vendettas

In quite a lot of situations, the hearing process is usually driven by individuals who would be keen to settle politically motivated and personal issues. Some of the issues are not even work productivity related. These may include situations related to fights outside the workplace or fights over promotions.

In some situations, companies normally haul a person before a disciplinary hearing after already made a decision. The hearing table then fails to serve its purpose which is to ensure that a fair hearing and justice happens. Instead, the hearing will be done to legitimize the employer’s pre-determined position. At the end of the day, the employer makes rushed decisions and often procedural and unfair.

The perpetrator who might hold huge political, social and economic power may instruct HR practitioners and lawyers that a certain decision might happen at all costs. Thus they approach HR practitioners and lawyers to assist them in washing their dirty linen.

Observe timelines

Most codes of conducts shows the systematic steps and timelines that the employer must observe when handling Industrial Relations disputes. Case in point is that of the SI 15 of 2006 code of conduct section 6 (1) states 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.”

In this instance the employer might fail to conduct the disciplinary hearing within the stipulated 14 days or fail properly write the suspension letter. Probably the suspension letter would have omitted the reason of suspension, the misconduct that the employee is alleged to have committed or whether an employee is serving a suspension with or without pay.

Those are the issues that may sound so simple and unnecessary but may result with the employer losing labour and employment relations issues.

Choosing the wrong penalty

Sometimes, the disciplinary hearing may give the wrong penalty and inappropriate penalty. Suppose the disciplinary panel may choose to dismiss an employee whilst they are supposed to just give him or her a written warning alone. In the education industry where they use the SI 72 of 2016 to cater for employees employed by the School Development Administration, there are clearly written down penalties and procedures. The SI 72 of 2016, absence from work for one or two days without authorisation as indicated on section 8.2.1 of the SI 72 of 2016 is declared a minor offence. Section 9 of the SI 72 of 2016, stipulates that for minor offences, there should be first a verbal warning if it is the first instance. If the employee repeats the same offence again then the employer should then give a first written warning.

The challenge that can then be found at work is that the employer may then dismiss an employee who would have absented himself or herself from work without conducting due diligence or were they should have given a lesser charge as prescribed by the law.

My key recommendations to employers and management

Today, I am giving you three strong recommendations that employers can follow so that they can smartly deal with industrial relations disputes. Being able to deal with industrial relations dispute will help you save thousands of dollars for your business and in the process, you will elevate the HR function onto the strategic table!

Have solid and comprehensive policies on how hearings shall be done

The employer should solid and comprehensive HR policies that clearly govern the workplace rules. The employee should be given a chance to read the policies and sign somewhere it is indicated that they are consenting with that!

Never underestimate the HR function, hire a competent HR practitioner.

Some employers do not see the value of HR practitioners in any company and hence might employ someone who is not competent with dealing with people issues. There is a chance that the person may make mistakes if he is not trained or given necessary support to do the job. Such employers will only see the value of having a fully-fledged HR team when they get in trouble!

Employers should recruit and hire a fully competent HR practitioner and if not then they should develop one. Even if they have competent HR practitioners, they should constantly train them.

Employers should create Employment Relations dispute assessment and plans

When employers are handling industrial relations issues they should have a thorough assessment of issues before they choose to embark on any probable courses of action. The evaluation report may contain the following items but not limited to that;

·       Background of the case.

·       Parties to the dispute (The complainant, the accused, the victim, the problem solver.) and how they are being affected.

·       Evidence on that is at hand, its authenticity and possible ways of improving it.

·       The current and potential of impact/gravity of the dispute.

·       The urgency of the dispute.

·       Misconducts done.

·       Possible charges.

·       Strengths ratings for the charges e.g. Very strong, strong, Neutral, Weak, Very weak.

·       Overall assessment (Also put a quantifiable assessment measure).

The plan should the come after the assessment report and it shows clear timelines, responsibilities, budget allocations, etc.

Conclusion

Lastly let me thank you for reading this article. Please do not forget to share this article to the next person because knowledge is power. This paper represents independent thinking and should not be used as a basis to make decisions in any particular situation! This paper is meant to share insights and open assist in triggering your minds! Do not copy paste what is written on this paper without placing your thoughts on it. Think independently and draw lessons from this paper! I hope you picked a few lessons from this. Best wishes in your career.

The writer is called Farai Mugabe. He holds a Master’s degree in Strategy and a BSc. Human Resource Management (Honours) degree. He is a top graduate from Midlands State University and is currently working for a global telecoms firm as an HR practitioner. He was awarded two coveted academic awards by Midlands State University and these are, The MSU Book Prize and The T & H award for the best male student in the HR Management department.

Farai Mugabe is a fountain of knowledge in the disciplines of HR management and Strategic management with a wide range of skills which include: organisational design, recruitment and selection, Employer branding, HR planning, leadership development, industrial relations, change management, performance management, financial management, cost management and strategic management.

Farai offers a practical approach to contextual issues that dominate the business and social space. In this article he discusses about how to properly handle a disciplinary hearing by observing tenets of natural and procedural justice. The annual cost of industrial relations disputes can be as high as half a million dollars or even more than that. Think about the productive time that is lost whilst conducting disciplinary hearings, decline in revenue per employee ratios, loss of employee morale, increase in staff turnover ratios, damage to employer brands and industrial actions.

A company with smart HR practitioners is able to control the cost of IR disputes and create a healthy work environment that will enable them to attract and retain the top talent on the market. This article serves the purpose of assisting HR practitioners and business leaders with understanding on how to manage employee relations issues. 

He writes in his personal capacity and this article was written for sharing insights and academic purposes only. Therefore he accepts no liability for any injuries, inconveniences or whatsoever that this article might cause. He can be reached on the following email address: [email protected]