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Davies Ndumiso Sibanda, Labour Matters
MANY employers use wrong codes of conduct to discipline their employees and end up being ordered to reinstate such dismissed workers or being told the disciplinary action taken was a nullity.

In terms of Zimbabwean legislation, we have three different types of codes of conduct

There is the National Employment Code of Conduct (Statutory Instrument 15 of 2006), in-house Code of Conduct and the NEC Code of Conduct.

To correctly apply discipline, one has to know which Code of Conduct is applicable in his case.

The National Code of Conduct is only applicable for those organisations without a Code of Conduct and NEC graded employees are also not covered by the NEC Code of Conduct.

The starting point is to establish whether the NEC that covers your industry has a Code of Conduct.

If it does, then all NEC covered employees are disciplined using the NEC Code of Conduct and managerial employees are disciplined using the National Employment Code of Conduct.

Care must, however, be taken in disciplining some supervisors as despite coverage by the NEC they are managerial employees in terms of the definition given in the Labour Act Chapter 28:01 meaning that even if their grade is covered by the NEC, the NEC Code of Conduct’s application could lead to serious legal problems.

Where both the NEC and the organisation have no Code of Conduct then the applicable Code of Conduct is the National Employment Code of Conduct.

This Code of Conduct looks simple and very small but without adequate training, it is very difficult to correctly use.

The third Code of Conduct is the in-house Code of Conduct.

This is the Code of Conduct that is negotiated internally with both managerial and non-managerial employees and registered with the registrar of labour relations.

The process of negotiating and registering this Code of Conduct calls for co-operation between the employer and employees.

Once registered, this Code of Conduct supersedes the NEC and the National Employment Code of Conduct.

The employer cannot choose the Code of Conduct to use.

In the matter Chikomba Rural District Council v Pasipanodya SC 26/12 the Supreme Court held that where there is a registered Code of Conduct no other code can be used.

This judgement highlights the need to stick to the appropriate Code of Conduct.

Where a wrong Code of Conduct has been used the employer has no choice but to abandon the entire disciplinary process and reinstate the employee without loss of pay and benefits.

Pay the employee all his dues and thereafter start the process afresh.

I have seen cases where the employee was to restart the process on a supervision that is a nullity.

That is wrong as the courts will declare the new proceedings a nullity as they are founded on the wrong Code of Conduct.

For example, if the original suspension was based on the wrong code then it has to be abandoned and the new case be founded on a suspension in terms of the appropriate Code of Conduct.

In conclusion, there is a need to use the correct Code of Conduct for employers to avoid the cost of reinstatement and all who handle discipline must be trained before they can use the Code of Conduct.

*Davies Ndumiso Sibanda can be contacted on: Email: [email protected]