The Sunday Mail
Tichawana Nyahuma
When used as a verb, the word “sack” refers to the ending of an employment relationship and it has a somewhat interesting if not comical or even strange origin. It all began with the advent and growth of the automobile industry.
As the said industry came of age and by a natural progression of things, there came a point in time when it became apparent that it was necessary to train people who would service and repair motor vehicles that were increasingly becoming the preferred mode of transport after the horse-drawn cart and the train.
As has always been the case, an apprentice was required to bring his or her own toolbox. The only difference between then and now is that back then, the tools were not kept in a box but rather in a sack or a satchel. At the end of each working day, the apprentice would not take his sack of tools back home. They were kept by the employer for the duration of the apprenticeship period.
However, in the event that the apprentice committed some misdemeanour necessitating the employer to dismiss him or her, no hearing was conducted, the employer would just give the sack with the tools back to the apprentice, thereby signalling the end of their employment relationship. So, if you were given your sack back, it meant that you had been dismissed.
It was said that fellow colleagues would jokingly say that she or he had been “sacked”. This is how the word “sack” as a noun, assumed a further meaning of a verb and hence a synonym of the words “dismiss” or “terminate” and others of their ilk that refer to the ending of an employment contract as a disciplinary measure.
Obviously, things have now changed in most jurisdictions.
In our country, instant or summary dismissal is at all times now unlawful. A hearing is a mandatory pre-requisite or antecedent to dismissal. Otherwise dismissal which is not preceded by a proper hearing is bound to be set aside by the court.
But what is it that both employers and employees have to watch out for in order for the hearing to be passed as free and fair? As you can see, it is not only elections that have to be “free and fair”.
Well, it all begins with the allegations of misconduct themselves and in that respect, it is necessary to pose these questions;
1. What is it that the employee is accused of?
2. Is it something that is covered by the Code of Conduct?
3. In terms of the Code, who is empowered to preside over the hearing?
4. What are the time lines of the relevant Code?
5. What are the penalties provided for under the Code?
6. Does the particular industry have a registered Code of Conduct? If not, what then happens if the need to conduct a hearing arises?
Below, I attempt to answer these questions and discuss the points to watch out for so that at the end of the day, the hearing may be certified as free and fair.
I begin by quickly pin-pointing out that, every disciplinary hearing must conform to and abide by two tenets. First, it must achieve procedural fairness and second, it must attain substantive justice in the same breath.
Further, the hearing must be conducted in the presence of the concerned employee as well as a representative of his or her choice unless she/he deliberately refrains from attending or makes it impossible for the hearing to proceed in his or her presence.
Procedural fairness simply refers to the rules of procedure as laid down in the particular code of conduct or relevant Statutory Instrument.
If for example, the code says that the employee is entitled to three days’ notice period prior to the date of the hearing, then nothing else is meant by it.
If the employer proceeds with the hearing before the three days are up, that is liable to be set aside by the court as the intendment is to give the affected employee ample time to seek appropriate advice and to draft defence to the allegations.
However, where the hearing goes ahead after the three days have lapsed, then the employee may not complain because in all probability, there will be no prejudice to his or her case unless the delay in conducting the hearing becomes inordinate. It has to be within a reasonable time period.
Further, the persons who preside over the hearing ought to be only those who are so qualified in terms of the code. I would say that “observers” ought not to be allowed to be in attendance as that may intimidate the hearing committee particularly if the so-called observer is a higher ranking official of the organisation. As a rule, a disciplinary hearing cannot be conducted in public as happens in a trial in a court of law.
The mistake that some employers and employee representatives tend to unwittingly fall into is that, sometimes they get emotionally involved in the matter.
No matter what the employee may be accused of, the best way to handle the case is to ensure that all members of the hearing committee disengage their relationship to the accused employee, whom I shall hereafter, call the Respondent, and face only the facts of the matter before them.
Cases of employers who prescribe, ahead of the hearing, that the Respondent ought to be dismissed no matter the circumstances, are common. Such conduct is silly and mischievous as it will have the effect of removing all objectivity from the committee as they will then also fear for their own careers if they do not abide thereby.
Also, incidents of workers’ committee members who will fight tooth and nail in the Respondent’s corner despite overwhelming evidence that in all probability, Respondent is guilty of the offence charged, are also prevalent. Again, that is totally unacceptable as it is unbecoming of a good employee representative.
It goes without saying that these attitudes are wrong and this brings in the aspect of continuous training and in this respect, I would say that such training sessions are better off when conducted jointly, that is to say, they must involve both employer and employee representatives. I am certain that such an approach will assist in removing suspicions and mistrust between the two camps.
In fact, it can only build confidence which will result in a well-oiled working relationship which can be of great benefit to the business itself.
So in as far as procedures are concerned, the ball is really in the employer’s court to ensure that these are followed. Although our courts have laid down that the Respondent ought not to complain of procedural irregularities unless is he or she is thereby prejudiced in the conduct of the case, this does not mean that employers have to throw the book out through the window for there are cases when employers have wished that they had not fired the person in the first place.
It will not only be an embarrassment but a cost in legal fees, back pay and damages for unlawful dismissal because certainly on appeal or review in a higher court, the employee will have a good day in court.
Even if the employer hires an advocate from outer space, they will not be able to tilt the scales of justice in the employer’s favour.
Substantive justice is meant to look at the actual allegations that the Respondent will be facing. Note the use of the word “allegations”. This means that the employer is enjoined to prove his case against the Respondent.
This is done by calling the evidence of witnesses and the production of documents that tend to prove that a certain provision of the code was infracted by the Respondent.
The Respondent is entitled to cross question the witnesses and to challenge any documents produced. At the end of the day, the hearing committee must ventilate all the evidence produced and then decide if the allegations would have been proved.
If the decision is that no sufficient evidence was placed before it, the committee is bound to release the Respondent from the matter meaning, therefore, that the case ends there and then.
Where the committee finds that the allegations would have been proved, it must recall the Respondent and his or her representative so that they address the committee in mitigation.
The committee is enjoined not to merely pay lip service to mitigation as this may result in a miscarriage of justice and thereby defeating the aspect of substantive justice alluded to earlier.
It occurs that sometimes the respondent is called into a hearing and is given “a chance to resign as a way of avoiding the consequences of dismissal”.
That sort of approach is unlawful as it amounts to cohesion. It is technically called “constructive dismissal”.
In other words, the resignation will not have been done freely and voluntarily and is accordingly bound to be set aside by the court.
In all this time, it is of the utmost importance that an accurate record of the proceedings is kept.
Otherwise dismissal as a penalty should really be resorted to when all other forms of rehabilitation have failed. Other forms of sanctions are verbal and written warnings, fines and the like.
Some codes of conduct actually provides for suspension of the erring employee for a limited time as a measure of the employer’s disgust at the conduct of the employee.
There are certain industrial sectors in our country that do not have codes of conduct or whose codes are not registered but are nevertheless enjoined to conduct disciplinary hearings when the need arises.
In such a scenario, they have to rely of the National Code, Statutory Instrument 15 of 2006 whose procedures though pretty straight forward, must, however, be read slowly because sometimes, the law can be tricky even to those in the learned profession.
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