This page was created for the purpose of sharing of professional management matters, hence the brief posts I have made recently, examining the subject of Change. Going forward, the focus will be on Zimbabwean Labour Law matters. Contributions from all quarters are welcome. Staying Away From A Disciplinary Hearing Quite often, employees make the wilful decision to stay away from a hearing, having been advised of the hearing. The attitude of the courts is well established: If you are made aware of a pending disciplinary hearing, and you wilfully choose to stay away from the hearing, without seeking leave of absence from the hearing, or seeking a postponment – the proceedings may very well go ahead without you, potentially to your prejudice. There is more: By choosing to stay away from the hearing, you have waived your right to challenge the propriety of those proceedings. (page 2 of the cyclostyled judgment) In a very short judgment, the Supreme Court restated these principles in the case of David Moyo Vs Rural Electrification Agency (Judgment No. SC 4/14). From the judgment, one can note the fact of the position being well established because the bench did not even cite supporting authorities for their decision. In this particular case, the Appellant’s legal representative had challenged the regularity of the proceedings in that they had not been concluded within 14 days as required by the National Code, in terms of which the matter had been determined by the Rural Elctrification Agency; And that the Appellant had not been heard in person. Lessons for the authority managing discipline 1. Your notification for a hearing should always indicate that if the Respondent should choose to stay away from the hearing, the hearing will still proceed, possibly to the detriment/prejudice of the Respondent. While this may not be a legal requirement in many instances, it is recommended best practice which will aid your case in the event of a challenge. 2. At the hearing, you are still obliged to keep a full record of the proceedings, showing that: the tribunal determining the matter did apply its mind to the merits of the matter. Non appearance by the employee is not necessarily equivalent to a plea of guilty. Lessons for the Employee Being Charged 1. If you have valid reasons for being away at the time of your hearing, make timely arrangements for a postponment, giving full reasons for the desired postponment. 2. It is advisable to agree the postponment with the other side, or to try at least, so as to avoid that party opposing the postponment. A last minute postponment may result in an order of costs against the party seeking it. It may also give an impression of dilatory conduct, which may in turn lead to an unfavourable credibility inference. _______________________________
Posted on: Thu, 01 Jan 2015 20:13:07 +0000