The Herald (Harare)

Zimbabwe: It's Crucial to Attend a Hearing

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How important is it for a worker to attend disciplinary proceedings that have been instituted against him or her? Are employers allowed to proceed with disciplinary hearings for employees who have been duly informed, but ignore the notice?

How far does failure to attend a disciplinary hearing affect the chances of a worker's acquittal? An example is that of Cosmas Chiminya who worked for Delta Beverages sorghum beer manufacturing as a stock controller.

Delta alleged that on March 18, 2010, a stock count was conducted which revealed that Chiminya had overstated the stocks under his charge by 571 crates.

There were also allegations that Chiminya had not done proper hand-over take-over with the next stock controller. In a statement recorded on March 18, 2010, Chiminya admitted that there was a variance in his stock by 571 crates.

Delta tried to serve Chiminya with a notice of hearing, but he refused to accept or sign for the notice to attend the hearing. On July 21, 2010, the hearing was conducted in his absence and he was charged with falsifying certificates, personal or company documents.

Chiminya was also charged with failure to exercise proper care and regard to the manner of discharging his duties, found guilty and dismissed from work.

He was not satisfied with the resultant dismissal penalty and appealed against the decision to the appeals hearing committee.

Chiminya was not successful and appealed again to the works council, which again dismissed his appeal.

He then appealed to the Labour Court arguing that he was not given an opportunity to be heard. Chiminya further argued that the appeal proceedings should not have been based on the record because he had been given a fake one.

He submitted that the initial disciplinary committee was improperly constituted, while workers representatives were barred from the hearing and replaced by hired workers representatives.

Was Chiminya denied the right to be heard or not? Evidence on record show that he was notified of the disciplinary proceedings against him, but refused to sign the notice and to accept the notification.

Attempts to serve his wife with the notice of hearing were not successful. Further attempts to serve the chairman of the workers' committee with the notice were also unsuccessful as he refused to accept service.

The record clearly showed that the employer went an extra mile to ensure that Chiminya was notified and attends the hearing, but he definitely chose not to be heard. There is nothing on record to support Chiminya's argument that he made frantic efforts to appeal, but it was in vain.

The record shows that the chairman of the appeals committee canvassed the merits of the matter. Chiminya made it impossible for himself to attend his own disciplinary hearing by refusing to either acknowledge or attend. During the appeal hearing, which he attended on September 14, he was heard on all the 14 grounds of appeal that he had raised.

There is therefore no merit in the ground that the employer denied Chiminya the right to be heard.

But was Chiminya fairly dismissed? It was argued in Chiminya's heads of arguments that he was unfairly dismissed because Delta failed in its duty envisaged under Section 12B (1) of the Labour Act Chapter 28:01 when it failed to let him attend the hearing proceedings.

However, it is clear that Delta did try to secure Chiminya's attendance at the hearing. It is Chiminya himself -- without good cause, since no reason for his failure to attend after he was made aware of the date of hearing had been advanced -- who failed to attend the hearing.

The employer was entitled under the circumstances of this case to proceed in his absence.

Gwaunza JA had the following to say in the Duly's Holdings versus Chanaiwa 2007 (2) ZLR (1) at 6A:

" . . . the respondent was given the opportunity to answer to the charges and to present his side of the story, he should not be heard to say that there was no observance of the audi ateram-partem rule."

The above remarks also apply in this case where Chiminya frustrated Delta's efforts to serve him with the notice to attend the hearing and deliberately refused to accept the notice or sign to acknowledge it.

The fault lies squarely at Chiminya's door and he cannot complain that he was not heard in the first hearing.

He was, however, given an opportunity to defend himself in the appeals hearing and never attempted to address the merits of the case. Chiminya did not explain the cause of the variance, which he acknowledged in a statement.

He did not address why at a stock take he was found to have a variance. Chiminya did not explain why he failed to do a proper hand-over take-over with the next stock controller as was required of him in terms of the Delta regulations.

During the proceedings at the Labour Court, he was represented by a legal practitioner who was aware of the provisions of the rules of the court, which allow evidence to be led in spite of the fact that these are appeal proceedings. He failed to take advantage of these to plead his innocence.

It is of considerable opinion that Chiminya's failure to address the actual merits of the alleged act of misconduct was because he had no basis on which to attack the findings since he was not innocent of the allegations.

It is undesirable to decide labour disputes on the basis of legal technicalities. This is a well-established principle of the law (see Dalyn Mine versus Musa Banda SC 39/99). Honourable Chief Justice Chidyausiku in the case of Air Zimbabwe versus Mensa SC 89/04 held the following:

"A person guilty of misconduct should not escape the consequences of his misdeeds simply because of failure to conduct disciplinary proceedings by another employee. He should escape such consequences because he is innocent."

Chiminya's heads of arguments cited the cases of Quest Motors Corporation (Pvt) Ltd versus Nyamakura. However, no citation was submitted that the case dealt with issues of allegations of incompetence.

Reference was again made to the case of Kwangwari versus Commercial Bank of Zimbabwe HH 70/03. Again no attempt was made to show why these cases were relevant to this case where the employer did not allege incompetence.

These cases are clearly distinguishable from the present case where a stock take revealed a variance and there was deliberate falsification of figures and a failure on a specific date to do a proper hand-over take-over.

As a result, Labour Court president Ms Lilian Hove was satisfied that Chiminya's appeal lacked merit and dismissed it.

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