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

    Burden of Proof
    The onus in all cases is on the employer to prove its case against the employee, the principle at law being, “he who alleges must prove”. Further, the burden of proof required for the employer to sustain its case against the employer depends on the nature of the allegations. Labour matters fall under the category of civil disputes, as such, the burden of proof is ordinarily on a balance of probabilities. This means that the evidence need not be overwhelming in order to warrant a finding of guilty. However, where the allegations against the employer involve some criminal connotations, for instance, where the employee is alleged to have committed theft, the employer ought to prove its case beyond a reasonable doubt. Failure to discharge this burden means that the employee is automatically entitled to a not guilty verdict. Indeed, the law is all about evidence, as such, a conviction that is not supported by evidence presented is a nullity. It can thus be overturned for want of substantive fairness.

    Reasons for the decision
    The employee is entitled to be informed of the reasons for the hearing authority’s decision. A decision that is not supported by reasons is normally presumed to have been unfairly arrived at. Thus, the Administrative Justice Act, which also applies to labour disciplinary proceedings, requires that a decision must be supported by reasons. An employee can thus make a written request for reasons and in the event that the request is turned down, the employee can apply to the high court to compel the hearing authority to give reasons for its decision. This also accords with section 68 of the Constitution which provides for the right to administrative justice. This entails, among other things, administrative conduct that is lawful, prompt, efficient, substantively and procedurally fair.

    In the event that the hearing authority decides that the employee is guilty of the misconduct allegations, the employee is entitled to address it in mitigation before the ultimate penalty (dismissal) is imposed. This means that the hearing authority is enjoined to take into account a variety of factors which, viewed against the misconduct, call for the imposition of a penalty other than dismissal. The code itself stipulates that punishment should in general be educational and corrective and that punitive action should not hastily be resorted to unless the less severe punishment has proved ineffective.

    It is noteworthy that disciplinary proceedings that comply with the foregoing requirements are in the best interests of both the employer and the employee. This is so because they can hardly be challenged for want of fairness. Thus, parties are spared the torment and costs associated with prosecuting appeals and reviews which normally end up being considered by ordinary courts of law. As such, disciplinary authorities are urged to conduct disciplinary proceedings in a manner that satisfies the requirements of substantive and procedural fairness.