KNOWING WHICH CODE TO USE AND HOW TO

CORRECTLY SPECIFY CHARGES/OFFENCES

A presentation by Peter NgorimaEmail: ngoristocrat@gmail.com

Cell: 0715 876 688

Procedural and substantive fairness• Courts and arbitrators will enquire into the procedural and

substantive fairness of disciplinary procedures.• Labour law also applies the principles of NJ found in

administrative law.• Why procedural fairness?

Mechanism for promoting labour peace.Fair procedure prior to dismissal ensures that the

employer ascertains the correct and relevant facts prior to making a decision regarding the guilt of the employee alleged to have committed a disciplinary offence.

Procedural and substantive fairnessAlso enables the employer make a

considered decision concerning the disciplinary sanction to be imposed.

• The starting point of any enquiry regarding procedural fairness of a dismissal is the disciplinary procedure applied by the employer*.

• This is provided for in a code of conduct.

What is a code of conduct?• CODE: a contract between two parties to an

employment relationship governing the conduct of both parties and the recourse available to the other wronged party.

• Employee wronged-grievance• Employer wronged-disciplinary hearing.

The legal requirement• The Labour Act requires every disciplinary

procedure to meet the legal and mandatory requirements for disciplinary proceedings.

• Section 12(B) of the Labour Act

Misconduct by employee:The legal approach• Section 12B Dismissal• (1) Every employee has the right not to be unfairly

dismissed.• (2) An employee is unfairly dismissed—• (a) if, subject to subsection (3), the employer fails to

show that he dismissed the employee in terms of anemployment code; or

• (b) in the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).

• [Paragraph substituted by section 7of Act 7 of 2005]

Misconduct by employee:the legal approach• Section 101 (9) of the Labour Act• (9) The Minister may, after consultation with

representatives of trade unions and employers organizations, by statutory instrument publish a model employment code of conduct.

• Statutory Instrument 15 of 2006 as amended.

Types of codes of conduct• LA envisages three types of Codes.• Section 101(1) An employment council or,

subject to subsections (1a), (1b) and (1c), a works council may apply in the manner prescribed to the Registrar to register an employment code of conduct that shall be binding in respect of the industry, undertaking or workplace to which it relates.

• [Subsection as substituted by section 35 of Act 17 of 2002]

Section 101 (contd)• (1a) Where an employment council has

registered a code governing employers and employees represented by it, no works council may apply for the registration of a code in respect of any industry, undertaking or workplace represented by the employment council unless it first refers the code to the employment council for its approval.

Section 101 (contd)• (1b) Where a code is registered by a works

council in respect of any industry, undertaking or workplace represented by an employment council and the employment council subsequently registers its own code, the code registered by the employment council shall supersede that of the works council, unless the works council refers it to the employment council for approval.

• [Subsection as inserted by section 35 of Act 17 of 2002]

• (1c) Where an employment council refuses to approve a code made by a works council in terms of subsection (1a) or (1b), the works council may refer the matter to a labour officer, and the determination of the labour officer on the matter shall be final unless the parties agree to refer it to voluntary arbitration.

• [Subsection as inserted by section 35 of Act 17 of 2002]

Three types of codes:• Workplace Codes-Works Council• NEC codes-relevant NEC• National Code: S.I 15 of 2006-Minister-

s101(9)• These must be registered to have the effect

of law!

Types of codes• Workplace codes are the product of the

Works Council (Worker’s Committee + Employer)-Section 101 (b).

• NEC Codes are industry wide.• National Code applies to every

workplace/industry without a Code of Conduct (Workplace and NEC).

• Some NECs have adopted the National Code in their industry e.g NEC Security; NEC Food and Allied; NEC Catering.

1. Code must be registered!• Obviously an unregistered code has no force

of law and anything done under it is null and void abnitio.

• See ZIMBABWE NEWSPAPERS (1980) LTD v NDLOVU 2000 (1) ZLR 127 (S) at p 129 held:

Unregistered code a nullity• “Having discovered that the 1994 code had

not been registered, the Tribunal* could not be expected to ignore the fact that the disciplinary proceedings conducted against Kalani in terms of that code were a nullity.”

• Decision of employer to dismiss set aside.

2.NEC Code not applicable to MEs• NEC Codes are not applicable to Managerial

Employees.• See Almin Industries Pvt Ltd v Chinowaita

SC-08-03• “It will be seen, that unlike the position which

pertained in Gwinyai’s case supra, the Code of Conduct applicable in casu does state otherwise. It clearly states, by its definition of “employee”, that it is not intended to apply to managerial employees*.”

3. Company code may apply to M.Es• “Prima facie a code of conduct applicable to

all employees is applicable to all employees unless otherwise stated….” McNally JA (as he was then) in Zimbabwe Tourist Investment Company v Gwinyai S.C 150/95 page 3.

• But note the factors considered by the Court

Factors considered by the Courts: • Position of employee• Structure of disciplinary proceedings and

appeals.• Wording of code: “This code of conduct is a

guide-line of rules and procedures intended to promote disciplined work behaviour. It outlines the standards of conduct and discipline expected of all employees and management of the ZITC”

4. Applicability of code to MDs• But what if Director of company?• Determine roles, duties and reporting

structure and disciplinary structure.• Where MD/Director is also employee, code is

applicable• ZIMPAC Foods Ltd v Mari LC/622/06• GOMWE & ANOR v ASSOCIATED

NEWSPAPERS OF ZIMBABWE (PVT) LTD 2001 (2) ZLR 415 (H),

Factors considered by the High Court • "When I find a man who is bound to devote his whole

time to the affairs of the company, to do all in his power

to develop and extend the business of the company, not

to engage in any other business and who is engaged on

the terms that his employment may be determined by

the company by notice in writing, I find it impossible to

say that he is not employed by the company.”*

Code of Conduct not always applicable to MD• When Director also an employee use

Company Code (if applicable!) or S.I 15 of 2006.

• BUT NOTE THAT COMPANY CODE NOT ALWAYS APPLICABLE TO MD.

• See Samuriwo v ZUPCO 2000 (1) ZLR 647 (S).

• “Yet it does not necessarily follow that though an employee of the respondent, the code of conduct applied to the appellant. He was, after all, a special type of employee, superior in rank to all others and in overall control of the day-to-day affairs of respondent and tasked with the administration of its business. Thus a close examination of the provisions of the code of conduct is called for in order to decide whether it can be said that the appellant fell within its reach…”*

Samuriwo v ZUPCO• “I therefore uphold the argument that the

code of conduct was not framed to take into account disciplinary proceedings against the appellant as the respondent’s managing director. Consequently, as the appellant did not fall within s 1A of the Regulations his employment could not be terminated by the respondent other than in accordance with s 2 or 3 of the Regulations*” per Gubbay CJ (as he then was) at p 652.

4. Transfer of undertaking• Employees transferred to another company

as a going concern are not covered by their previous code of conduct.

• Section 16 of the Labour Act:

4. Section 16 vis Code of Conduct• “Section 16 of the Labour Relations Act

[Chapter 28:01] provides for the rights of employees on the transfer of an undertaking. That section merely provides that whenever an undertaking in which any persons are employees is alienated or transferred, the employment of such persons shall be deemed to be transferred on terms and conditions which are not less favourable than those which applied before the transfer.

Section 16 vis Code of Conduct• “Those provisions cannot possibly be

interpreted as applying to an employment code of conduct. It would be anomalous to hold that a group of employees who are absorbed by another undertaking would continue to be bound by the code of conduct registered in respect of their former employer, whilst the rest of the employees would be bound by a different code of conduct” per Smith J in Chinowaita and Anor v Air Zimbabwe HH-54-03 p5*

5. NEC code applies automatically when employer has not registered own code• Natpak v Mbanje SC-56-01• When company has no code and NEC has

one, use NEC Code.

6. Use company code when it is in existence• must use own Code of Conduct (where

applicable) rather than National Code • Chikomba RDC v Pasipanodya SC 26/2012 • Parties cannot agree to ignore a registered

Code of conduct where it exists in favour of the National Code.

Factors considered by the court• There can be no doubt, regard being had to

the provisions in the Act and the Regulations to which reference has been made, that the submission by the appellant that it was entitled to use either the Act or the Regulations or both is not tenable. Both the Act and the Regulations are clear that the National Employment Code of conduct contained in those regulations can only be invoked where there is no registered code of conduct.” Garwe JA at p4

Factors considered by the court• “5. Termination of contract of employment • No employer shall terminate a contract of employment with

an employee unless - • (a) the termination is done in terms of an employment code

which is registered in terms of section 101(1) of the Act; or • (b) in the absence of the registered code of conduct

mentioned in (a), the termination in terms of the National Employment Code of Conduct provided for under these regulations; or

• (c) ... • (d) ...” (underlining is for emphasis)

7. Codes must be read sensibly to fill any gaps• Obviously a code will not cover every

circumstance for charging an employee.• Where this is the case the court may

condone deviations from codes where no prejudice has been suffered by the employee.

• See Dulys Holdings v Chanaiwa SC-17-07

SUMMARY: some factors to consider• Code of conduct in existence at company

level?• Is code registered?• Does it apply to all employees?• What about senior employees like MDs• NEC Code in existence? • If answer is no for the above use National

Code.

Some comments on Company Codes• Requirement for works council to refer code

to NEC for approval before registration does not apply to those with a code before the Act was amended.

• Ensure that your code is in line with current legislature. For example some codes still provide for an appeal to the “Tribunal” which has since been changed to the Labour Court.

How to correctly specify charges/offences• Specifying charges is part and parcel of procedural and

substantive fairness in disciplinary hearings.• Cases have been lost for want of correct and vague

charges. Charges enable the accused to prepare his defence.

• Charges that the employee is to answer must be made well in advance of the hearing.

• Employee cannot be charged on offence A and be dismissed on offence B. Stick to your charges!

• For example employee is charged with absenteeism but midway through the hearing changes the charge to disobedience to a lawful order.

How to correctly specify charges/offences• Having identified the proper and applicable

Code of Conduct the next step is how to correctly prefer charges.

• This is an important stage as it determines the fairness of the disciplinary proceedings and penalty imposed.

Specifying charges• Although the courts have accepted that

disciplinary proceedings do not require strict adherence to procedures like the courts, nevertheless they have held that the charges levelled against the employee must arise from the misconduct complained of.

• The employer cannot change the charge or add new charges after the commencement of the hearing.*

Some court cases• ECON SPAR v DAVID S BANDA SC 113/02• “It was not correct to charge the respondent

with the more serious offence under Group IV offences, as his conduct does not fit into those offences. Had he behaved as stated in Group IV offences, it would have been appropriate to dismiss him,” Cheda JA at p3.

Some court cases• Standard Chartered Bank v Matsika 1996 (1)

ZLR 123 (S)-the common law principle — that an employer may defend a dismissal on any objective ground in existence, even if he was at the time unaware of it — was not relevant (p124).

• Tip Top Dry Cleaners v Karangura SC-167/1997-failure to state the ground of misconduct relied upon rendered the purported suspension invalid.

• Martha Mashava v The PSC HH-150-2001-clear statement of offence needed.

Factors to consider in specifying charges• Nature of offence: what offence (if any!) has

the employee committed?• Refer specifically to the incident that is

complained of. Do not be “wishy washy” e.g. “sometime between June and August 2014 you disobeyed certain orders given by your supervisor.”

• Remember the intention behind spelling out charges is to enable the employee to prepare his defence and enable the disciplinary authority to make a decision.

• Ensure that the misconduct levelled is correctly applied to the offence.

• See Tanganda Tea Company v Mvududu SC-01-07.

• The offence does not necessarily have to meet the stringent requirements of criminal courts/common law. Parties are free to agree on the label to be given to the offence. Per Malaba JA in ZIMASCO v Zakeyo SC-70-60 at page 10:

• Nor does the charge or misconduct have to fit in with the dictionary definition. For example a charge of “sabotage” as provided for in the Code may be different from the dictionary definition of the same.

• See Norest Taruvinga V Cimas Medical Laboratories SC 19/05

• “The offence for purposes of the Code of Conduct is not committed when the dictionary meaning of “sabotage” is satisfied. Rather, it is committed when the conduct complained of constitutes the specific offence defined under that heading. That being the case, the argument that the conduct must meet the dictionary or ordinary meaning of “sabotage” for it to constitute an offence under s8 of the Group IV offences, is without merit.” per Gwaunza JA.

• “It seems to me it does not matter very much in cases of misconduct at workplaces what label one puts to the facts as long as they establish the conduct which the parties intended to regulate. The conduct in this case did not have to embody the essential elements of the common law crime of theft. The parties were at liberty to agree, as they did, upon a definition of misconduct wider than what would ordinarily be prescribed under criminal law.”

Duties of employees in brief• Behind every charge is the allegation that an

employee has breached a duty of his/her contract.• These are provided for in the contract of

employment and common law (principles of contract law and labour law).

• They are contained in the relevant applicable code of conduct: Company Code/NEC Code/National Code (S.I 15 of 2006).

• 3 things involved: establish the breach, which duty has been breached and how is it provided for under the applicable code.

• Misconducts arising outside the workplace may not necessarily constitute a breach of duties. E.g. an employee dragged to court for divorce proceedings.

• Which part of the code has been violated?• Misconduct essentially involves the

employee breaching his/her duties in the employment relationship.

• The following are examples to note when specifying charges.

Duties of employees in brief:1. Duty to provide service.• This is the duty of employee to avail

himself/herself to the employer to render personal services.

• Also includes duty to remain in services of employer as long as the employer-employee relationship still exists.

• Breach of duty may involve the following:• Absenteeism, unpunctuality, desertion.

Breach of duty to render service• These can be broken down further to issues

such as the length of absence, whether it was lawful/reasonable or not, due to a legal/illegal strike, illness or supervening impossibility.

• Lateness can be broken down further to include issues like: is it habitual or a once off incident?

• How is the breach provided for in the applicable code? E.g S.I 15 of 2006.

Duty 2: duty to serve the employer faithfully and competently• In other words employee should put the

employer’s interest first at his/her place of work.

• Employee should execute his/her duties with due care and skill.

• Employee should be as efficient as possible when executing duties.

• Breach of the above duties could lead to the following offences:

• Inefficiency: worker has ability to do the job but does not perform to the usual or normal standard expected.– is it gross/substantial and/or habitual? Is it

a once off incident or minor?• Incompetency: lack of skill or ability to

perform a job.– gross/substantial? Does it involve lack of skill

which the employee claimed to have got? Or is it failure to adjust to new job methods?

• Negligence: employee is aware of his/her duties and capable of performing them but for no good reason does not perform or does them in an incorrect way because of lack of application or concentration*.

Duty 3: Subordination• This includes duty to obey lawful and

reasonable orders given by the employer.• Duty to be respectful to employer and

superior

Breach of duty could lead to:

• Disobedience to a lawful order: • Use of insulting language accompanied by

insolence towards the employer/superiors.

Duty 4: duty of faithfulness• Generally to advance the interests of the

employer.• Not to engage in activities that may conflict

with those of the employer.• Not to compete with the employer.• Not to do anything that could result in loss to

the employer.

Breach of duty could involve:• Theft charges.• Destruction of employer’s property. Was it

wilful or not? See section 4(c) of S.I 15.• Acts of dishonesty or conflicts of interest.• Criminal offence that has a bearing on the

employment contract. • Sexual harassment of other employees.• Fighting with other employees/using

threatening language/making work environment unsafe for others to work.

• Divulging confidential information of employer or trade secrets.

• The above offences are not all specified in S.I 15 of 2006.

• Can be covered by “the omnibus charge” of act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his/her employment.”

In summary:• Misconduct charges/offences are essentially

a breach of contractual duties by an employer.

• Code of conduct is there to provide what happens when a breach is made.

• Thus ALL CHARGES MUST BE DERIVED FROM THE APPLICABLE CODE.

• Look at the offence/misconduct: what section of code has been breached?

Some “donts.”• Do not go “witch hunting!” or prefer a charge that

you think will achieve your goal (to get rid of employee you do not like in most cases).

• Do not put the cart before the horse! Establish what breach has been committed and see how it is provided for in applicable C of C. Charge accordingly.

• Do not rush to charge without properly ascertaining the facts.

• Do not “ambush” an employee with charges in the hearing.

• Do not “split charges.”• ‘Splitting the charges’ is where the same

incident is described in a variety of ways. • While the employer will use the same facts

and evidence to prove the variety of charges, the chairperson may, in finding the employee guilty of all the charges, impose a more serious sanction because cumulatively it looks like the employee was guilty of many acts of misconduct.

• Do not rely on an unknown fact to charge an employee.

• Be specific. The charge(s) should be formulated in precise and simple terms. They must be specific enough to enable the employee to answer them.

• Make sure you state the correct category of the alleged offence where the code provides for different categories and penalties.

• After all has been said it should be remembered that code of Conduct are not exhaustive.

• Just because an employee has committed an offence not covered by the code of conduct does not mean he/she cannot be charged.

• After all codes of conduct are drafted by layman who may not have the expertise of lawyers and trial judges.

Thank you!

Suspensions: the correct way• There are two kind of suspensions:

–Suspensions to facilitate an investigation into alleged misconduct

–Suspension as a penalty for misconduct.• This [resentation will focus on suspension

to facilitate investigations into alleged misconduct.

Some issues to consider when suspending• Strict adherence to time frames:• Failure to adhere to time frames will render

the suspension invalid.• An unjusitifiably long suspension causes

prejudice to the employee

The suspension must be done under the applicable code• The courts have held that any disciplinary actions done

under a wrong code including suspension done under it are a nullity at law.

• See Interfresh v Richard Chiweta LC/H/45/2006 where Mutezo P held:

• “19.There is no doubt in my mind that in respect of the procedure adopted this matter was fatally irregular and that the suspension which was done in terms of the wrong instrument, is a nullity while the application to dismiss which followed is also a nullity.

• 20. The reasons for the suspension, the manner of the suspension and everything which followed should have been in terms of the code.”