The law sometimes recognizes that the employer and the employee as parties to an employment contract do not wield the same power. In Greatermans Stores (1979) (Private Limited) t/a Thomas Miekles Stores & Anor v The Minister of Public Service, Labour and Social Welfare & Anor CCZ 2/18 the Constitutional Court accepted this principle and held that the employer may be treated differently by the law as compared to the employee in certain circumstances.
Cases of misconduct in a workplace set up have always been viewed as unequal between an employer and an employee. This is because the employer is responsible for setting up the disciplinary tribunal and in most cases wields the power to determine who sits in the tribunal. Even in circumstances where the disciplinary tribunal is partly made up of employee nominated worker representatives, the employer always carries the numbers to make the ultimate decision. As long as a charge of misconduct is preferred by an employer against an employee there is a certain element of institutional bias, as the employer is the offended party.
The above leads to the question of whether the employer can appeal against the decision of its appointed disciplinary authority?
Common sense would say that it is not possible because it would amount to the employer appealing against ‘its own’ decision.
The question was answered in our jurisprudence by the Supreme Court in the case of ZESA Holdings (Pvt) Ltd v Obson Matunja SC 73/22 where the court held as follows;
“In my view, the law giver reposed upon any person or party to proceedings held under the National Employment Code, or any other Employment Code, the right to access the court a quo by way of appeal if aggrieved. That should be the end of the inquiry. Nowhere in s 92 D is it stated that the right to appeal is a preserve of an employee alone. The court a quo fell into grave error in holding otherwise”
In doing so the Supreme Court set aside the decision of the Labour Court which had held that an employer who has appointed a disciplinary tribunal has no right of appeal in the event of an unfavourable outcome.
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