It often happens that an employer adopt an incorrect procedure in disciplining an employee. This may arise from for example, use of a wrong code of conduct, failure to follow a code of conduct in executing a disciplinary process or where the employer summarily dismisses an employee without a hearing. These circumstances and alike may entitle the affected employee to challenge the dismissal on the basis of the procedural irregularities.
It is settled law that not all procedural irregularities vitiate proceedings, for them to do so the party raising it has to establish some prejudice suffered as a result of the irregularities. See Tichawana Nyahuma v Barclays Bank (Pvt) Ltd SC 67/05. Further the courts have emphasized that it is undesirable that labour relations matters be decided on procedural irregularities but at the same time the procedural irregularities should be put right. See Dalny Mine v Banda 1999(1) ZLR 220 SC; Nyoni v Secretary for Public Service Labour and Social Welfare &Anor 1997 (2) ZLR 516 and Posts and Telecommunications Corporation v Zvenyika Chizema SC 108/04. What this means is that the courts are very slow to set aside a dismissal of an employee guilty of an act of misconduct only on the basis that an incorrect procedure has been adopted. Put differently a person who is guilty should not be allowed to remain in employment on account of a perceived procedural imperfection but rather on the basis their innocence. The message is very clear, instead of the charged employee concentrating on poking holes on the manner in which he has been disciplined, the employee should expend more energy on proving that they are innocent of the charges. In Air Zimbabwe (Pvt) Ltd v Chiku Mnensa & Anor SC 89/04, the Supreme Court on a similar issue remarked as follows;
“A person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee. He should escape such consequences because he is innocent”
As a general rule, the law recognize the employer’s right to correct a wrongly adopted procedure in dismissing an employee by instituting fresh proceedings without falling foul of the functus officio principle. In Madawo v Interfresh Ltd 2000(1) ZLR 660 9 (HC) Chinhengo J (as he then was) held;
“If an employer recognizes that it has adopted an incorrect or inappropriate procedure in effecting a dismissal there is nothing to prevent him from adopting the correct procedure to effect the dismissal”
Suffice to mention that the employer’s right to get a second bite of the cherry is not cast in stone and can be taken away in exceptional circumstances to the general rule above. More recently in Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC 62/19 Patel JA (as he then was) in a majority judgment which carried the day held as follows;
“Having regard to the authorities cited above, the basic principle to be applied where an employee is unprocedurally disciplined or dismissed is that the employer is at large to rescind the irregular proceedings or dismissal and thereafter institute fresh disciplinary proceedings on a proper basis. Nevertheless, it seems to me that it may be necessary and proper to depart from this general principle in very limited and exceptional circumstances. The justification for doing so springs from the need “to advance social justice and democracy in the workplace” in order, inter alia to secure “the just, effective and expeditious resolution of disputes and unfair labour practices” as enjoined by s 2A of the Labour Act. The particular circumstances that would warrant such departure is the situation where the employer proceeds in a manner that evinces bad faith…
In the instant case, I take the view that the appellant acted disingenuously and clearly mala fide in the following respects. Firstly, the appellant only reversed the irregular dismissal of the respondent after the matter was referred to a labour officer and on the very day that it received the labour officer’s notification to attend the conciliation hearing two weeks later. Secondly and again quite insidiously, the appellant almost immediately thereafter instituted fresh proceedings and hurriedly concluded them, fully aware of the fact that the conciliation hearing before the labour officer was scheduled to take place only three days later.”
This means that an employer should endeavour to act in good faith when it comes to instituting disciplinary proceedings against employees even where the employer perceive that the employee’s guilty is patently clear as broad daylight. The employer should resist the urge to achieve a dismissal at all costs which may result in the commission of grave procedural irregularities and which ultimately leads to the dismissal being set aside and may in exceptional circumstances result in the legal right to reconvene properly constituted disciplinary proceedings being fettered away.
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