Introduction:
In the realm of employment law, disciplinary case hearings often evoke images of formal settings where an employee who has allegedly flouted the disciplinary code appears physically before a disciplinary committee. However, the reality is far more nuanced. In the modern workplace, disciplinary proceedings can take various forms, and the notion of a "hearing" extends beyond physical appearance of an accused employee before a disciplinary committee. This write-up aims to shed light on the misconception surrounding disciplinary case hearings, emphasizing that they do not necessarily entail a physical presence. Additionally, it will elucidate how the simple act of requesting an employee to explain their actions constitutes the fundamental right to be heard, drawing insights from legal precedents.
Understanding Disciplinary Case Hearings:
Contrary to popular belief, a disciplinary case hearing is not confined to a traditional courtroom setup. While physical hearings may occur in some instances, the term encompasses a broader spectrum of interactions between employers and employees regarding alleged misconduct or breaches of company policy. These interactions can take place through written correspondence, virtual meetings, or even informal discussions. The key essence of a disciplinary case hearing lies in providing the accused employee with an opportunity to present their side of the story and respond to the allegations leveled against them. This requirement is made clear in clause 52 (3) of the Employment Code Act. It states that:
“An employer shall not terminate the contract of employment of an employee for reasons related to an employee’s conduct or performance, before the employee is accorded an opportunity to be heard”.
The Right to Be Heard:
Central to the concept of a fair disciplinary process is the principle of audi alteram partem, or "hear the other side." In essence, this principle ensures that individuals facing disciplinary action have the right to be heard and defend themselves before any adverse decisions are made. Importantly, this right extends beyond formal hearings and encompasses any meaningful opportunity for the employee to present their perspective.
Legal Precedents:
In the case of George Chisenga Mumba v Telecel (Zambia) Limited, the supreme court provided guidance to the effect that hearing, for the purposes of disciplinary proceedings is not confined to physical presence of an accused and giving oral evidence. The court added that a submission of an exculpatory letter in disciplinary proceedings is a form of hearing.
The court further expanded on that matter while dealing with the same case. It held:
“We have pronounced ourlselves before on this matter and we shall say it again that the employee is given an opportunity to be heard on the charges levelled against him when he is charged and asked to exculpate himself”.
In another case of Mopani Copper Mines Plc v Mathews Mphoro, the issue of the right to be heard via an exculpatory letter as being adequate is reinforced. In the said case, the employee alleged that he was wrongfully dismissed because he was not given an opportunity to appear before a disciplinary committee physically prior to being dismissed. The court held that the fact that he gave an exculpatory statement sufficed as fair procedure and his dismissal was not wrongful and was thus upheld.
In the George Chisenga Mumba v Telecel (Zambia) Limited case, the court emphasized that the employer's duty to afford the employee a fair hearing does not necessarily require a physical gathering. Instead, any reasonable opportunity for the employee to respond to the allegations suffices to satisfy this requirement.
Similarly, in the Mopani Copper Mines Plc v Mathews Mphoro case, the court underscored that the mere act of requesting an employee to provide an explanation constitutes extending the right to be heard. Even in the absence of a formal hearing, this initial opportunity for the employee to respond is essential for ensuring procedural fairness.
Conclusion:
In conclusion, it is imperative to dispel the misconception that disciplinary case hearings must entail physical gatherings. Employers must recognize that providing employees with a fair opportunity to respond to allegations, whether through written correspondence or other means, is fundamental to upholding the principles of procedural fairness. The legal precedents cited underscore the importance of extending the right to be heard to all parties involved in disciplinary proceedings. By embracing diverse modes of communication and ensuring transparency throughout the process, organizations can foster trust, maintain employee morale, and uphold the integrity of their disciplinary practices.
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Authored by
Ronald R Sambo
Founder & CVO
Talent Hub Human Capital Consultants