Discipliny Proceedings under the Labour (National Employment Code of Conduct) Regulations of 2006: Procedural and Substantive Fairness

    Disciplinary Procedure

    An employer who believes that an employee has committed an act of misconduct is at liberty to suspend the employee with or without benefits. In the event that the employee is suspended, the employer is obliged to serve the employee with a letter of suspension specifying the reasons for suspension. The requirement to serve a letter of suspension is peremptory, use of the word shall in section 6(1) of the code imports compulsion and obligation. Our courts have held that a suspension which does not comply with this requirement is a nullity. Nullification of the suspension entails that the set up that prevailed prior to the purported suspension will be restored (status quo ante). It is therefore imperative for the employer to comply with this requirement in order to validate any subsequent proceedings.

    Once the employee is suspended in the manner highlighted above, the next step is for the employer to investigate the matter and conduct a hearing within 14working days. The law requires the hearing be conducted within the specified time frames where the same is prescribed as in this case. The 14 day period is intended to ensure that the proceedings are held whilst the facts are still fresh in the minds of the parties. This also conforms to the Labour Act which seeks to ensure that labour disputes are dealt with in a speedy and expeditious manner. It should also be noted that absolute compliance with the time frames is called for, as appears from use of the word “shall” in the governing provision.

    Notice and Representation
    Prior to attending the hearing, the employee is entitled to a minimum of three working days notice of the proceedings. Again this has to be complied with. At the hearing, the employee is entitled to legal representation at their own expense. Unlike under the discarded Constitution, the right to legal representation when one is appearing before a forum other than a court of law is now constitutional guaranteed. This means that the employee may not be denied this right. Note should also be taken of the fact that in addition to legal representation, the employee can also be represented by a fellow employee, worker’s committee or a trade union official.

    Besides, the law requires that an employee be allowed to call witnesses in their defence and also to cross examine the employer’s witnesses. Basically, the procedure is the same as that which obtains in the ordinary courts, save for the informalities attendant to labour matters. This means that the employer is first given an opportunity to present its case against the employee through its witnesses. Once the employer’s witnesses have testified, the employer or his representative is given an opportunity to cross examine them. Thereafter, the employee will call its witnesses in defence who will also be cross examined by the employer.