When a Code of Conduct is silent on procedure

The Chronicle

Davies Ndumiso Sibanda

MANY employers struggle with discipling senior employees especially where the complainant is the chief executive or the chief executive has to be disciplined because most old Codes of Conduct do not have mechanism for handling such cases.

Best practice requires that when crafting a Code of Conduct, the employer should provide for disciplinary processes for handling non managerial employees cases, managerial employees cases including heads of departments and chief executives. Unfortunately, most old Codes of Conduct do not provide for mechanism for handling heads of departments and chief executive officers’ case.

There has been a misconception that where the Code of Conduct has no mechanism for handling senior managerial employees’ cases, the employer can revert to the National Employment Code of Conduct, that is wrong. The law is clear in that once the organisation has a Code of Conduct, which carters for managerial and non-managerial employees, the employer is confined to using the inhouse Code of Conduct, he cannot cherry pick the Code he wants to use. For the employer to go back to the National Employment Code of Conduct, he would have to first de-register the in-house Code of Conduct or amend the Code of Conduct to exclude senior managerial employees and have the amendment registered.

Where the Code has no mechanism in handling managerial employees’ cases, we resort to common law, which allows for the appointment of a knowledgeable impartial individual who is acceptable to both parties to preside over the hearing. The legal question is whether there was prejudice. Where there is no prejudice in whatever method is used by the employer, there is no problem. We find dicta in the case Dulys Holdings vs Chanaiwa SC17/07.

Chanaiwa was dismissed from employment and he appealed to the Labour Court alleging failure to follow procedure.  The Labour Court ordered his reinstatement and the employer appealed to the Supreme Court.  The SC found there was no procedure in the code of conduct to deal with cases of employees at Chanaiwa’s level but found no prejudice in the method used by the employer.  It said “I am not persuaded by this argument. Apart from Papalexis not having solely determined the respondent’s fate at the disciplinary committee stage, since he sat with others on the committee, the appeals committee, in its turn, comprised members who represented, in equal numbers, management and workers. To suggest without substantiation that members of both these committees so stood in awe of Papelexis that they would not have dared to go against his (Papalexis’s) judgment on the respondent’s case, is, in my view, to unfairly put their personal integrity and professionalism into question.

The appellant’s argument that it did the best thing under the circumstances to ensure that the respondent had a fair hearing cannot, in my view, be faulted. To the extent that the respondent was given an opportunity to answer to the charges and present his side of the story, he should not be heard to say that there was no observance of the audi alteram partem rule. The court a quo correctly noted in its judgment that the rules of justice required no more than that the domestic tribunal acts according to the common sense precepts of fairness. Given the circumstances outlined above, I respectfully disagree with the court a quo’s conclusion that it could, in casu, not be said that the rules of natural justice were observed. I am satisfied that the respondent was, therefore, not prejudiced in any way by the disciplinary procedures followed.

The appellant argues, correctly, that the adoption of disciplinary procedures not specifically outlined in the Code finds support in ZFC v Eunice Geza SC 14/97, where this court emphasized the importance of flexibility in the conduct of disciplinary tribunals, and the principle that they were there to conduct an enquiry. It cannot, in my view, be said in this case that the disciplinary tribunal did not conduct an enquiry.”

In conclusion, whatever method is used by the employer, the flexibility employed should be such that no prejudice occurs and unless the employee proves prejudice, issues of procedural irregularities will not arise.