1. LAW SOCIETY OF ZIMBABWE Managing labour Disputes G Makings Legal Practitioner

2.  This session is designed as I understand it to assist Legal Practitioners who have to advise their Client on all aspects of the disciplinary process  The content will look at what should have been done at a hearing to constitute a procedurally and substantively fair hearing  When one refers to a hearing being procedurally fair what this is addressing is to ensure that any rules laid down either in the code or through legal precedent or required by natural justice are adhered to in the process of conducting the hearing  Substantively fair is a process where the evidence led in support of the charge must be sufficient for the hearing to be satisfied that the offence has been proven and the offender is unable to rebut this evidence.

3.  When looking at the disciplinary process always bear in mind that the onus is always on the employer to raise a prima face case against the offender. It is only after this that the onus falls on the offender to present a defence to the charge raised  Proof in disciplinary cases is on the balance of probabilities not beyond a reasonable doubt  I am sure I will not address all the issues of concern to you all as participants and I am very happy to take questions as we move along or at the end time permitting

4.  In most cases the possible Offenders Immediate Supervisor would be charged with the responsibility to investigate although who this will depend on the relevant code. He shall initially look at whether there is a case to answer or not.  It is critical that the person charged with investigating shall invite the alleged Offender to respond to the allegations and upon receipt of that shall look at the two situations to decide whether to counsel/charge or proceed no further  If the decision is to charge a Hearing Officer/Disciplinary Committee, independent of the dispute shall be appointed again depending on the code. Some codes lay down a specific time frame that must be adhered to before a hearing takes place to allow the alleged offender to prepare his defence

5.  The Law refers to a requirement for natural justice to be followed at all times. It is a requirement of natural justice that a hearing be conducted. For a hearing to be procedurally fair the alleged offender must receive a written copy of the charge, he must have sufficient details to be able to prepare his defence, he must if he so wishes have a representative of his choice, and he must be able to question those giving evidence against him if he disputes their evidence and he must be allowed to lead evidence/call witnesses in his own defence.  A record of the of the hearing process must be kept and it must be sufficient in detail for a third party to understand what happened. A decision must be made within 14 days of the process beginning- these days are working days

6.  Once the Hearing has decided the Alleged offender is guilty of the offence he/they may issue either a written warning or if the offence requires it a dismissal notice. He/they shall give a copy of that to the offender in the presence of his representative unless there in no representative. Reasons for the decision made should in all instances be given as it is a requirement of natural justice  There is usually a provision in most Codes for an alleged offender facing a charge that could lead to him being discharged or if it is felt his presence would be disruptive for him to be suspended on pay or without pay but do not loose sight of the need to complete proceedings within 14 working days

7.  Prior to any decision being made regarding what would be an appropriate punishment the offender should be allowed to address in mitigation pointing out why the punishment may be less severe than that laid down by the code. This requirement appears in most codes but even if it not there it could be argued it is part of the requirements of natural justice. Any determination given shall be in writing and it should notify the offender of his right to appeal. If termination is the punishment the date that services will be/were terminated should be included in the notification.

8. When you are asked to sit as a hearing officer by a Client you should leave your partisan hat at the door. You are no longer an Employer appointee but an independent adjudicator who will have to deal with an unresolved conflict

9.  Look at the record of the proceedings in front of you and ensure that it is procedurally fair. Were the basic rules for the conducting of a hearing, referred to above, followed? If there are areas where the rules were not followed one has to establish whether that failure to follow the rules was material to the outcome or not.  If not certain and you believe that the calling of evidence would help you make the decision you are entitled at any stage to call for that further evidence

10.  Remember the matter you are dealing with is quasi judicial. This means it does not have the evidential onus of a criminal offence it is decided on the balance of probabilities. One has to appreciate that in a disciplinary process there is always likely to be conflicting versions of the events and there is no way around having to look at what is more probable in the version of events you are facing and come to a decision on this basis  Know what the offence the offender is alleged to have committed is made up of and look at the substantive evidence, to see if it conforms with the requirements of this offence (e.g. what constitutes theft)

11.  Appeals from initial hearings are often in the first instance to the Managing Director and they are on the record. Appeals from there normally go to the Labour Court but this process will depend on the code  Appeals to the M.D must be lodged within time frame laid down in the code while appeals to the Labour Court must be lodged within 21 days. If there are no time limits for appeals to be heard it is not a good idea to delay as if the matter goes beyond 30 days it can be referred to the Department of Labour  Appeals are not a rehearing of the case they are on the record although the offender and the complaint should be allowed to address the person/body conducting the appeal should they wish.  Obviously the points referred to above in slides 4 and 5 are relevant here

12.  In terms of general practice only unexpired previous offences may be considered in deciding on an appropriate penalty  In terms of guidance as to what effect the penalty should have it is normal for codes to make the repetition of the same or similar offences while a valid warning is in place a basis for the level of warning to move one higher level than it would have been without that offences being in place.  The existing practice in law makes it clear that expired warnings must be expunged from an offender’s record This means that one cannot rely on a poor previous record of warnings that have expired to aggravate the punishment handed out.

13.  If suspended without pay and subsequently found not guilty pay shall be made up but if found guilty pay is not made up the dismissal will be from the date of suspension. If suspension is with pay the employee is not required to pay back the money received while on suspension even though the discharge may formerly be from the date of suspension Notice pay is not applicable where summarily discharged as a result of discipline.

14.  Offences are generally divided into three groups that range from the minor to moderate to the dischargeable offences. In all codes offences are not easily distinguishable between the levels. Distinguishing where any particular incident of unsatisfactory work performance falls is subjective but there needs to be some basis to the decision making and decisions need to be built on past precedent not on what your Client may or may not think of the offender

15.  It is always important to remember it is not the job of a body looking at the decision of a third party to substitute its decision for that of the third party merely because they prefer their approach to that of the third party. The law has specifically stated that the body looking at the decision may only interfere with it, if a reasonable man in the position of the third party would not have come to that conclusion, not just that you do not agree with it.