One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the right of every person to be heard or afforded an opportunity to make representations before any decision is taken that might impinge upon his or her rights, interests or legitimate expectations.
In labour disciplinary proceedings, the law requires that an employee suspected of having committed an allegation of misconduct be given an opportunity to defend themselves before a properly constituted disciplinary tribunal. To comply with this requirement the employer should timeously and in writing notify the employee concerned about the allegation of misconduct coupled with the date, venue and time of the hearing.
Where an employee is served with the notification to attend disciplinary proceedings but decides to stay away from the proceedings, the employee is taken to have waived their right to be heard.
In Moyo v Rural Electrification Agency SC4/14 an employee was advised in the notification letter of his right to appear in person or with a legal representative and was warned that in the event of his non-attendance, the hearing would proceed in his absence and possibly to his detriment. That notwithstanding, the employee travelled to out of the country without leave of absence and without seeking a postponement of the hearing. The hearing proceeded in his absence and the employee was found guilty as charged and was dismissed. He sought to challenge the proceedings on the basis that his right to be heard had been breached. The Supreme Court held that by deliberately absenting himself without leave from the hearing, he waived his right to challenge the conduct of the disciplinary proceedings. He had the option, which he did not exercise, of seeking a postponement since he knew that he would not be available on the date of the hearing and in the circumstances the challenge was dismissed and the validity of the proceedings was upheld.
In ZESA Enterprises (Pvt) Ltd v Stevawo SC 29/17 it was held that the right to be heard is not an absolute immutable rule of law. It can be waived or forfeited where the beneficiary is at fault.
Professor G Feltoe in his book, A Basic Introduction to The Administrative Law of Zimbabwe, states at p 18 that the principle of natural justice can be waived when he says:
“Clearly when a person is offered the chance to exercise one of the rights recognized as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”
The same learned author proceeds to elaborate in his other book, A Guide to Administration and Local Government Law, 2009, at p 57 that:
“Where a party due to his own fault fails to attend a hearing after being properly notified to attend, the enquiry can proceed in his absence.”
The courts have consistently held that to be the unquestionable position at law. See also Chitizanga v Chairman of the Public Service Commission & Anor 2000 (1) ZLR (H) 201 and Rwodzi v Chegutu Municipality HH – 86 – 03.
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