Unpacking SI 15 of 2006(2)
THIS past week, we started a conversation on SI 15 of 2006, in particular its importance in the handling of disciplinary matters where employees are managerial employees or they are not covered by any particular code of conduct. We are continuing this week. I will take you through the Code of Conduct and simplify it with a hope to helping the parties that are often seized with disciplinary matters. Once an act of misconduct has arisen who presides over the dispute? SI 15 of 2006 answers this.
Adjudicating authority
There is a tendency by most practitioners to skip this part yet to gives many perspectives to many of the provisions in terms of the Statutory Instrument. There are two terms that are important for a better understanding of how the disciplinary process applies;
◆ Disciplinary committee
◆ Disciplinary authority
Disciplinary committee
A “disciplinary committee” means a committee set up at a workplace/establishment composed of employer and employees’ representatives, to preside over and decide over disciplinary cases and/or worker grievances.
On the other hand, a “disciplinary authority” means a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace. The composition of a disciplinary committee is defined and settled in terms of S2 of the Statutory instrument. What this means is that if the employer decides to proceed as a Disciplinary Committee the same must be constituted in terms of equal representation between the employer and the employees. Once there is no equal representation, the Disciplinary Committee will be improperly constituted.
The Supreme Court in National Engineering Workers Union (NEWU) v Ntombizodwa Dube SC01/16, went on to interpret the concept of “Disciplinary Committee”;
“Firstly, there are two definitions of ‘disciplinary committee’ in the definitions section of the Code. There is one that I will refer to as a “stand alone” definition, and the other that is subsumed under the definition of ‘disciplinary authority.’ This means that a disciplinary committee as so subsumed, is one of the ‘bodies’ that may constitute a disciplinary authority, just like the ‘person’ or ‘authority’ mentioned in the definition in question.
Secondly, while the two definitions are contained in the definitions section of the statutory instrument, only ‘disciplinary authority’ is referred to in the body of the instrument itself, and this is in s 6(1)(4)(b), which reads in the relevant part as follows:
“(4) At a hearing in terms of subsection (2), an employee shall have the right to—
(a)appear in person before the employer or the employer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, worker’s committee member, trade union official/officer or a legal practitioner” (my emphasis)”
The imporprovision, tance of this as enunciated in Crispen Mandizvidza v ZFC Limited and Anor (SC 73/2015) is that it confers on a disciplinary authority powers to conduct a disciplinary hearing at the workplace. By contrast, there is no provision in the operative provisions of the Code that confers similar powers on a disciplinary committee. In effect and as already stated, such committee is not mentioned in the body of the Code. Based on this anomaly, the Supreme Court correctly determined in the Mandizvidza case (supra) that there is no provision in the Code for an employee to appear before a disciplinary committee unless such committee is constituted as part of a disciplinary authority.
The dispute in the National Engineering Workers Union (NEWU) v Ntombizodwa Dube SC01/16 related to the nature of the disciplinary body that determined the matter at hand. The appellant’s submission in the case was that there was ample factual evidence before the court that points to a clear intention by the appellant to set up a disciplinary authority as opposed to a disciplinary committee (as separately defined). The letter addressed to the employee spoke clearly that that the employee was going to appear before a Disciplinary Authority.
In keeping with the requirement in the definition of ‘disciplinary authority’, the respondent was advised to bring to the disciplinary hearing, ‘a person of your choice to represent you.’ The minutes themselves record that its chairman informed those who were present that the hearing was to be conducted in terms of s 6(4) of the Code. This provision contained no direct reference to a disciplinary committee. Finally, the disciplinary hearing was attended by the appellant’s representatives on the one hand, and the respondent and her legal practitioner on the other. This composition accords with what is provided for in s 6(4)(1)(b) of the Code, cited above. Had the appellant wished to convene a disciplinary committee as described in the stand-alone definition.
The distinction between these two disciplinary authorities is highlighted in the Mandizvidza case (supra) where this Court stated as follows in relation to the Code:
A disciplinary authority on the other hand can mean a person or a committee dealing with disciplinary matters at the workplace and its composition is not dictated by the Code of Conduct . . . Clearly the appellant is obviously mixing the two. The disciplinary authority can be constituted by a single person and it can be extended to a disciplinary committee”.
The distinction set out by the Supreme Court is important in that it emphasises a pertinent point that the constitution and definition of a disciplinary committee is clearly provided for in terms of the Code. This is where a disciplinary committee and a disciplinary authority differs. In the event that the employer decides to proceed with a Disciplinary Committee, the employer has to comply with the composition spelt out in terms of the Code. There is therefore need to strictly adhere to the provisions of the law there. Failure to comply with the law, can found a basis for impeaching the proceedings on review. I will take you through the law on reviews in other articles.
It is a cardinal principle of the common law is expressed in the aphorism “nemo ex proprio dolo consequitur actionem”, which translates: no one maintains an action arising out of his own wrong. Complementary to this principle is another which stipulates: “nemo ex suo delicto meliorem suam conditionem facere potest”, which means: no one can make better by his own misdeed.
◆ Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial, and family law and 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@gmail.com.