ONE of the most problematic things is dismissing senior managers in organisations as in most cases employers do not follow the law and end up with complex legal cases that are better settled out of court at a huge cost to the business.

The nature of our codes of conduct is that they generally lack clarity on how to procedurally discipline a senior manager where the complainant is the chief executive or board of directors unless the code of conduct is professionally crafted.

Most codes of conduct were either copied from the next company or were crafted by human resources practitioners without legal training and no knowledge of legal drafting. The result is that the codes of conduct have many loopholes that get used by smart lawyers and labour consultants to successfully defend clients.

A classic example is the RDCs NEC Code of Conduct, which covers managerial employees who by definition given in the Labour Act cannot be disciplined using a code of conduct that was negotiated and registered by employers and non-managerial employees code of conduct.

Simply put, where a managerial employee is disciplined using the NEC code of conduct, one can allow matters to run and raise the legal question around legal definition of a managerial employee so as to nullify proceedings. Very few human resources practitioners know that provisions of a code of conduct cannot extinguish provisions of an Act of Parliament.

There are many senior employees’ cases where an employee is suspended by a board or council resolution or using legislation other than the Labour Act. Such cases get complex if the employee’s lawyers immediately approach higher courts paralysing the process for years only for the employer to be told the suspension was unlawful, the employee has to be reinstated without loss of pay and benefits. Further, the employer is ordered to carry the cost of litigation.

There have been cases of chief executives who have non-procedurally been complainants and hearing officials so as to get rid of subordinates at all costs. In one case, the chief executive appointed one head of department to be the complainant. Such cases are clear cut evidence of abuse of the law.

Experience as a labour consultant has shown that many senior managers, board members and councillors, once in office, assume they are some kind of leviathan without knowing that they have to get formal training in discipline handling especially at senior level where cases can be complex with employees hiring more competent lawyers and advocates than the employers representative.

Formal training in discipline law helps board members, councillors and senior management understand the need to be fair, apply principles of natural justice and observe the code of conduct procedures. It is much better where there are legal minds in the board although at times it doesn’t help as labour law is a special area of law many lawyers struggle with.

There are also cases where the new board is instructed by the shareholder to get rid of certain senior managers or employees. Usually, the board or council starts work by ordering a dubious forensic audit that is not capable of standing legal scrutiny when it is used as a basis for dismissing senior managers.

I recall one occasion where I was asked to advise whether a forensic audit could be used to get rid of some senior managers. My advice was that it was not possible to use the forensic report as it made allegations that could not stand the test of basic evidence law principles.

The board went ahead and dismissed at a huge cost as some cases had to be settled out of court and others were lost.

In conclusion, dismissal of senior managers is problematic in that there are procedural challenges, they know where the skeletons are and due to collective decision making at the top it’s not easy to apportion blame and lastly litigation at that level usually involves fine legal brains on both sides making it problematic to dismiss more so where defence lawyers put the organisation on trial instead of the client.

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