Davies Ndumiso Sibanda
WITHOUT proper training in discipline handling, managers are likely to make mistakes that could end up costing the organisation a fortune when employees appeal against unfair dismissal or unfair labour practice successfully.
The worst enemy of managerial employees who handle discipline is that many assume they know and in the end they handle cases wrongly resulting in costly litigation for the employer.
The code of conduct looks very simple but its administration requires appropriate legal training for human resources staff who will provide guidance and also specialised training for the line managers who administer discipline on a daily basis.
The most expensive group of employees in discipline management are chief executives and heads of department who are expected to set the tone for discipline handling and in the end they end up creating a culture of tyranny where almost all workers in the organisations have warnings and no day passes without a disciplinary hearing being conducted. In worse cases several of them are lost to workers on a monthly basis at a huge cost.
We have managers who are a labour relations management risk, whenever they are around, the working atmosphere gets poisoned affecting productivity negatively. They will hunt for offences in the code of conduct so as to stick them on innocent employees.
Not long ago, I was chatting with workers from one manufacturing company where the subject of fairness of the disciplinary process was discussed. The workers said at their workplace there is no justice at initial and appeal hearing level as the cases are pre-determined.
The workers said they now view the disciplinary and internal appeal hearings as a “bus stop” on their way to seeking justice from the Labour Court. When this happens then discipline related financial exposure for the employer increases.
The first challenge for employers is that most managers do not understand that they achieve results through the very people they weaken by given warning or firing of their colleagues. Workers who have seen a colleague being dismissed or who are sitting on warnings are unlikely to give you their best. They are generally withdrawn, timid, cautious and in worst cases afraid to do more than the minimum as a means to avoid making mistakes.
The code of conduct itself is a highly technical document despite being crafted by lay men. It must be borne in mind that a simple case of dismissing an employee for absent from work for more than five days without reasonable cause could end up being argued at the Supreme Court where parties will argue over the meaning of reasonable cause.
For a manager to be able to handle the code of conduct fairly and effectively, there is a need for basic training in the conduct of a disciplinary hearing, the contents of a code of conduct, preparation for a hearing, how to interpret offences, relating matters to company law, law of evidence, representing a party, making submissions, reviewing evidence, handling decided cases, handling witnesses, dealing with aggravation and mitigation, putting a record together, how to participate as a member of the disciplinary committee, making a determination and handling appeals.
You will note that for a managerial employee to fully comprehend all matters mentioned above there is a need for training.
In addition, even after training there is a need to cautiously update one’s knowledge as new approaches emerge. For example, not long ago I was reading a case in an English Law journal where the shift in looking at employment contracts was being discussed.
The new thinking is that given the inherent imbalance of power between the employer and the employee, and the fact that unlike other contracts, which remain static as per terms agreed by parties, the employment contract moves with times and as such where there is a dispute over terms of a contract, the court should not stop at what the parties agreed in writing but should venture to also look at how the parties have lived the contract in order to get an accurate picture of the contract.
This approach is contrary to what our Supreme Court said in Magodora vs Care International SC 191/13, I have no doubt that such approach to contracts will shortly get into our courts.
In conclusion, where managerial employees are not trained in discipline law, the employer is likely to face costs related to lost cases and unstable labour relations.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235