In many disciplinary cases, an employee’s success at a disciplinary hearing depends not only on the quality of defence and the facts of the matter but also conduct of the employee and his or her representative throughout the hearing.

Labour law is a specialised area of law as it involves resolving disputes between parties that have to work together after the dispute has been resolved.

As such, a strong adversarial approach fractures the relationship into the future and at times even in times where mitigation could have helped, the opportunity is lost.

There are many cases where employees have argued their cases personally and through representatives in a very strong way but remain polite throughout the hearing so as to build a good foundation for mitigation in the event that the employee is found guilty.

This is achieved through respect for the disciplinary authority, using polished language by employee or representative. However, where the employee or representative use the aggressive approach, chances of insulting the disciplinary authority who is the face of the employer are very high and at the same time, the complainant who is the supervisor to the defendant gets irritated and in worst cases upset by the way the defendant and representative conduct themselves.

When that happens, the complainant usually takes the stand that the employee should be dismissed at all costs. To make sure that the employee is dismissed at all costs, the complainant is most likely to present the misconduct in a manner that demonstrates that the conduct that is complained of goes to the root of the relationship and as such, the only relief is dismissal.

Thus, extinguishing any chance of successful mitigation as set out in section 12B (4) of the Labour Act Chapter 28:01.

This position was confirmed by the Supreme Court in the matter ZB Bank vs Masunda S, “At common law an employer has the power to dismiss an employee where the employee is found guilty of misconduct that goes to the root of the employment contract.

See Toyota Zimbabwe vs Posi SC55-07. In essence, where the employer takes serious view of the misconduct he can dismiss an employee even if in terms of the code of conduct the offence would have attracted a lesser penalty. Also see Zimplats vs Godide SC2/16.” In many cases, labour consultants, trade unionists, lawyers and legal practitioners have failed to recognise this legal position and sunk workers who were good candidates for mitigation.

The conduct of an employee during a hearing, even if it was not an issue for decision-making by the court, can have a bearing on the determination. One case that stand out is Mpumela vs Berger Paints SC133/99 where the Supreme Court said, “I am satisfied that in the present case the order issued by the respondent’s manager was an order properly appertaining to the character of the appellant’s contract of employment and was lawful.

It cannot cogently be argued that as the contract of employment did not mention what type of clothes the appellant was required to wear, the respondent’s manager could not order him to wear appropriate clothes.

In my view, there is certainly no substance in the argument that the appellant was entitled to wear whatever clothes he wanted to wear.

If that were the case, the appellant would have been entitled to go to work wearing a jogging suit or track suit, which could hardly have been within the contemplation of                                                                                                          the parties at the time the contract of employment was concluded, bearing in mind the fact that the appellant was employed as a bookkeeper.”

This case clearly shows that defiance of authority during a hearing can be taken into consideration in decision making. The employee should submit himself to the employer’s control throughout the hearing.

The employee retains the right to present a robust legal and factual argument but all this must be done in a manner that allows for meaningful mitigation and preservation of the relationship between the parties in the event the employee is not dismissed and in cases where the offence was dismissible but conduct at the hearing saves the day.

In conclusion, employees should avoid reckless language during hearings and at the same time they must not use representatives simply because they are labour consultants, trade unionists or lawyers as that is not a qualification for being a good discipline law representative.

Davies Ndumiso Sibanda can be contacted on Email: [email protected]