Stages And Principles To Be Observed
In Zimbabwe instant or summary dismissal is at all times now unlawful even where the employee is accused of having committed a blatant misconduct.
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?
In summary the following general road map must be followed in conducting a fair disciplinary hearing;
- Where an employer has good cause to believe that an employee has committed a misconduct the employer may suspend such employee with or without pay and benefits and shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension (if the code provides for such suspension).
- Upon serving the employee with the suspension letter ,the employer shall, investigate the matter
- Serve a notice, in writing, on the employee concerned to appear for a disciplinary hearing before a specified disciplinary committee/authority as the case may be for purposes of conducting a disciplinary hearing. The notice must also specify the charges that he is or she is facing. It must also advice the employee of the right of the employee to appear in person and or to be represented by either a fellow employee, worker’s committee member, trade union official/officer or a legal practitioner(as the code may provide).
- At the hearing the disciplinary committee shall observe the following;
- Enquire from the employee if he is happy with the composition of the panel. Note if there are any objections which must be addressed or recorded.
- Read out the charges that the employee is facing as per charge letter.
- Ask the employee to enter his/her plea to the charges-whether guilty or not guilty. If guilty- proceed to hear the employee on mitigation and give penalty. If not guilty proceed to the next stage.
- Ask complainant to lay out the charges and call any witnesses to support the charges.
- Allow the employee and/or his/her representative to cross-examine the witnesses until complainant’s case is exhausted.
- Ask the employee to open and lead his defence case and call witnesses if any.
- Allow the complainant and/or his/her representatives to cross examine employee’s witnesses.
- NB The Disciplinary Committee or Disciplinary Authority is at any stage free to intervene and seek clarification from all the witness. However the committee or authority is strongly discouraged from dissenting into the arena which may point to a pre-determined decision and may lead to an apprehension of bias.
- Allow all sides to submit closing submissions (orally or in writing).
- Disciplinary Committee or Authority to render its verdict. Whether guilty or not guilty. If not guilty give reasons and terminate the proceedings. If guilty give reasons and invite the employee and the complainant to submit mitigation and aggravation respectively.
- Render the ultimate penalty in writing supported by reasons for the decision.
In the same communique, advise the employee of his or her right to appeal to a specified appeals body and the period within which to exercise that right. In summary the following general road map must be followed in conducting a fair disciplinary hearing.
The contents of this article are for general information purposes only do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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