Following code of conduct procedures important

Labour Matters Ndumiso Davies Sibanda
MANY employers wrongly assume that following procedure in application of codes of conduct is not important because they misread a number of cases related to the subject that give room for departure from procedure. Fairness in disciplinary cases must be both procedurally and substantively fair meaning that where failure to follow procedure results in one party being prejudiced the courts will ordinarily not allow the matter to proceed to merits or substantive matters.

Common fatal errors on procedure involve cases where employers use disciplinary authorities that are not prescribed in the code of conduct, where the code specifies the involvement of the workers committee members as part of the disciplinary authority then the employer has no choice but to have the workers committee members participate. Where there is no workers committee then the code becomes paralysed and the employer has to use other legal avenues to discipline workers.

The law is clear on failure to follow procedure. When the failure to follow procedure does not disadvantage one party then the mistake can be overlooked and parties go on to look at the merits of the case. The difficulty with this approach is that there must be evidence that the breach of procedure is not material.

Where the code of conduct uses the word shall the parties have no choice but to follow procedure. There are however other common law procedure issues that are of great importance such as observance of principles of natural justice.

Parties must not misread provisions of section 85 (c ) of the Constitution of Zimbabwe which reads ,”the court while observing rules of natural justice is not unreasonably restricted by procedural technicalities’’.

This provision cannot be read in isolation as whatever is done in allowing for this provision must not compromise the fairness of the hearing which is also a Constitutional requirement addressed in several sections of the Constitution.

At times employers will prefer charges that are not applicable to a case in an effort to get rid of an employee. The challenge with this is that workers will successfully raise an argument of inappropriate charges.

In conclusion employer should stick to given procedures in the Code of conduct and must also read other unwritten legal procedural requirements to be procedurally fair. If in doubt there is a need to seek expert advice.

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