Zimpapers Logo

Davies Ndumiso Sibanda
MANY labour cases are thrown out by courts not because the employee will not have a case to answer but because the chairperson will have done a messy job of procedure resulting in the courts reinstating the worker who will have alleged prejudice.

The starting point is not assuming managerial employees by virtue of their position qualify to preside over hearings without training simply because the code of conduct gives them that authority.

The majority of senior managerial employees have not been trained in discipline law and they have unprocedurally handled discipline cases and survived because either the worker has not appealed or the worker is represented by a representative who is ignorant of the law or the organisation will have hired expert legal advisers who outwit the workers’ representative before the courts.

Today the landscape is fast changing as there are many legal minds at the disposal of workers which has resulted in cases being lost by employers. The chairperson and his team must be thoroughly trained on their roles and discipline law.

It is common to find a chairperson chasing away the worker representative particularly lawyers, trade unionists and consultants who will have come to represent the worker despite the fact that the code of conduct allows for such representation. Such decisions usually come back to bite the employer.

At times the chairperson does not know the procedure for conducting the hearing. He accepts hearsay evidence or ignores critical evidence, at times he is openly biased against the workers which in the majority of cases includes intimidation of the defendant, his witnesses and representatives. Such conduct is likely to create problems for the employer as it creates an unfair process.

There are times when the chairperson and his committee violate principles of natural justice such as reasonable time to prepare, right to all evidence, right to representation and right to clear charges as set out in the code of conduct. In the end, the hearing becomes a shouting match without focus on any specific charges.

In worse cases when a determination is made, it does not talk to the submissions made by parties and it totally ignores the charges that were raised. For example, an employee is charged with negligence but in the end is found guilty of gross incompetence. These are two different charges, a thing that could easily result in reinstatement of an employee.

There are also times where contaminated or conflicted individuals are used to hear the case resulting in the case being declared a nullity.

In conclusion, there are many other things that those who chair hearings should know and the answer lies in being trained in discipline law.

Davies Ndumiso Sibanda can be contacted on: email: [email protected], Or cellphone No: 0772 375 235