Effect of procedural irregularities

Arthur Marara

The subject of disciplinary hearings has caused many headaches to many human resources practitioners.

The purpose of this series is to provide a guide on how the process can be effectively done.

If not properly handled a disciplinary hearing can result in serious losses through damages for the business. These can be prevented by taking heed of some of the pointers we discussed in the previous articles.

A point was made in the preceding articles that a disciplinary hearing has to satisfy the procedural, and substantive fairness test. It is not unusual for procedural irregularities to be raised by an employee when challenging a determination either by a Disciplinary Committee or Disciplinary Authority.

The question is what is the legal position on this. In what instances can allegations of procedural irregularities warrant interfering with the decision of the employer. This is the question that we are going to discuss in this instalment.

What is the position of law

The law is settled, procedural irregularities do not necessarily vitiate disciplinary proceedings. This is the general rule. The Labour Court and the Supreme Court have taken a position that if a party wants to rely on procedural irregularities to vitiate proceedings, there is need to prove prejudice.

It is not enough therefore to just allege that there were procedural irregularities, you need to allege the prejudice that you suffered.

The consideration of law when the Court is faced with an allegation of procedural irregularities is whether or not the procedural irregularities in the disciplinary hearing are so serious as to warrant the setting aside of the determination of the hearing committee.

In Rural Electrification Agency v David Moyo LC/H/137/2011, President Chivizhe BT (as she then was) held that, “It is trite for any procedural irregularity to vitiate disciplinary proceedings it has to be shown that the employee suffered prejudice.”

This point is also supported by President Matanda-Moyo L (as she then was), in the case of Adam Bede v Patricia Nhema LC/H/241/12 where she held that, “It is trite that labour matters should not be dealt with on technicalities.

Once there has been procedural irregularities, the remedy is to cure the defects and thereafter deal with the matter according to the merits… It is thus my finding that even though there were irregularities in the Proceedings such irregularities did not cause any prejudice to the Respondent.”

In the case of Nyahuma v Barclays Bank (Pvt) Limited 2005 (2) ZLR 445 (S), the Supreme Court held that; “It is not all procedural irregularities which vitiate proceedings. In order to succeed in having proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity.” The onus to prove prejudice lies on the person who is making the allegation.

The common complaint stems from the effect that an employee’s contract would have been terminated. A dismissal cannot be termed prejudice and neither can the conviction be termed so. A conviction has to be arrived on the basis of the evidence presented before a disciplinary committee or authority. It follows that once a conviction has been made a penalty has to be meted out. The prejudice alleged should have compromised an employee’s ability to prosecute his or her defence.

The Supreme Court in in a more recent case of UNIFREIGHT LIMITED v LIGHTON MADEMBO SC6/18 had the opportunity to explore the issue of procedural irregularities;

“…It cannot be denied that there were some irregularities during the disciplinary hearing. This is indeed accepted by the appellant. Although it is trite that not all irregularities result in the vitiating of disciplinary proceedings it must be shown that the irregularities resulted in prejudice.”

The Unifreight case details some of the procedural irregularities during the disciplinary hearing. The Supreme Court made a stern observation;

“In casu, it appears most of the procedural dictates of the Code governing the employment relationship between the parties were disregarded. There was a blatant disregard of the most basic of procedural requirements.”

There were notable violations of the Code of Conduct that the Court raised in this particular matter for example;

There were no accurate minutes of the disciplinary hearing were kept by the appellant.

The committee comprised of only two disciplinary officers, one of whom was the chairman and also posed questions raising the employers concerns.

In essence, the Chairman’s role went beyond that of an inquisitorial authority and became a party to the proceedings.

The Court also defined the importance of a Code of Conduct, “It is important to note that the Code that regulates the conduct between employer and employee operates as a contractual obligation which they both willingly entered into and is therefore binding.

One of the parties cannot therefore arbitrarily, and to the prejudice of the other, decide not to comply with certain dictates of that contract.” The provisions of a conduct thus bind both the employer, and the employees.

There is need for more training interventions in organisations to ensure that those who are responsible for discipline in the workplace are armed with the necessary tools at law to enable them to guide the organisations through the Disciplinary process.

There is need for thorough understanding of the Code of Conduct, by both the employer, and the employees. Ignorance is always expensive.

I hope that this instalment was of use to you. Let us catch up next week in the next instalment.

LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

Arthur Marara is a practising Attorney. Bestselling Author . Human Capital Trainer|. Business Speaker . Thought Leader . Law Lecturer . Consultant . Coach. Legal Proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email attorneyarthurmarara
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