This discussion attempts to answer the question as to when an employer would be able or be allowed, under the code, to appeal against the disciplinary authority/ committee’s decision.
Matters regarding disciplinary action are dealt with under registered codes of employment. These codes are registered under law as provided for under section 101 of the Labour Act [Chapter 28:01] (“the Act”). Section 101(9) provides for the establishment of a model employment code of conduct. The Labour (National Employment Code of Conduct) Regulations, 2006 published in Statutory Instrument (S.I.) 15 of 2006 is supposedly such model, yet a lot leaves to be desired about it being labelled as such.
A code of conduct has two distinct components, namely a procedure and the substantive issues covered by the code. The procedure deals with the process or method by which the issues in dispute will move forward.
The substantive issues include the definitions of and the specific offences constituting breaches under the code. Also covered under the substantive issues are the penalties or sanctions imposed at the end of the disciplinary enquiry in circumstances where the commission of an offence has been established while using the prescribed disciplinary procedure.
Whether an employer has a right to appeal under the code is a question which the code itself must answer. This clarity is important because should the employer appeal where such appeal is not provided for, then the appeal and everything flowing from it will be a nullity. Whether an appeal avails to an employer cannot be an exercise of discretion on the part of the employer. The code of conduct must always speak to this point.
How does the code speak to show that an employer can appeal or not appeal in a given circumstance? The question can be answered in two ways. First, the code can say in black and white that the employer has a right to appeal if not happy with a particular outcome following a disciplinary enquiry. Secondly, this can become an issue of interpreting the language of the code. If the interpretation leads to the conclusion that the right of appeal avails to the employer, then in that circumstance the employer can appeal against the decision of the disciplinary enquiry.
To illustrate the point, it is important to make reference to the Labour (National Employment Code of Conduct) Regulations, 2006 (“the Code”) published in Statutory Instrument 15 of 2006.
The code allows an employer to set up either a disciplinary committee or a disciplinary authority to preside over disciplinary enquiries in the first instance.
The disciplinary committee is defined as “a committee set up at a workplace/establishment composed of employer and employees representatives, to preside over and decide over disciplinary cases and/or worker grievances”.
It also defines the disciplinary authority as “a person or authority or such disciplinary committee dealing with disciplinary matters in an establishment or at a workplace”.
The differences between the disciplinary committee and the disciplinary authority are explained in Crispen Mandizvidza v ZFC Limited and Anor SC 73/2015 as well as in National Engineering Workers Union (NEWU) v Ntombizodwa Dube.
In the latter case, the Court noted that there are two definitions of “disciplinary committee” in the definitions section of the Code. One of these is a stand-alone definition (which is the one given above) and the second one is subsumed under the definition of “disciplinary authority”. The Court said this means that a disciplinary committee as so subsumed, is one of the bodies that may constitute a disciplinary authority. Put simply, a disciplinary committee is one form of a disciplinary authority. This is because other than a disciplinary authority being composed of two or more people (in which event it is a disciplinary committee), a disciplinary authority can also be constituted of one person.
Under the code, the appointment of the disciplinary authority is at the discretion of the employer. The employer chooses and appoints who he/she wants to preside over the disciplinary enquiry as a disciplinary authority. The point is well made in Mandizvidza (supra) where the Court said;
“It seems to me that whereas the National Code has stipulated who should constitute a disciplinary committee, the composition of a disciplinary authority has been left to the discretion of the employer”.
It, thus, stands to reason that if the employer decides, without consulting anyone, on who should be the disciplinary authority to determine a disciplinary issue, that person/authority so appointed is the employer’s representative in every sense of that word. It, therefore, further stands to reason, that by that in the event that the disciplinary authority makes a ruling adverse to the employer, the employer would not be in a position to appeal against the decision so arrived at. This would have to be the case because the disciplinary authority, whether in the employment of the employer, or an outsider, was always acting as an agent of the employer when he/she sat to determine on the disciplinary matter.
That the disciplinary authority so appointed is always representing the employer, although as a neutral adjudicator, when presiding over the disciplinary matter, is clear from the language of the Code in section 6(4), which provides as follows;
“At a hearing in terms of subsection (2), an employee shall have the right to –
(a) “………
(b) appear in person before the employer or the employer’s representative or disciplinary authority as the case may be and be represented by either a fellow employee, worker’s committee member, trade union official/officer or a legal practitioner”
With reference to appeals, the Code further provides in section 8(1) that “….an employer may appoint a person in his or her employment as an Appeals Officer or with the agreement of his or her employee or workers representatives, an Appeals Committee to preside over and decide on appeals”.
It is clear that when the employer appoints an Appeals Officer stands in the same position as the single person Disciplinary Authority. He/she is, thus, a representative of the employer when he/she presides over a disciplinary appeal hearing. In that circumstance, just as in the disciplinary hearing below presided by the single person disciplinary authority, the employer would not be in a position to appeal against an adverse ruling at the Appeal Officer stage.
When the disciplinary authority is constituted as a committee, the Code requires that some of its members /be worker representatives. Similarly, when the appeal hearing is constituted as an appeals committee, the Code requires that there be agreement between the employer and the workers on its composition. It may very well be that when these committees are formed parties agree on who has the right of appeal at both the initial hearing as well as at the appeal stage. Thus, it may be possible, depending on what is agreed upon, that an employer may have the right to appeal decisions made at both the initial disciplinary committee hearing as well as at the appeals Committee stage. Therefore, the wording of what is agreed between the parties (employer and employees) would determine whether the employer has a right to appeal against the ruling made by either or both the first hearing or the appeal hearing.
This discussion has deliberately centred on the National Code to discuss the circumstances under which an employer can appeal a disciplinary authority/committee’s decision in order to simplify the discussion. However, the same principles raised here would apply with equal force when any other registered code of conduct is looked at.
The language of the code can be clear on whether an employer has a right to appeal or not. In this regard, most codes registered by NECs allow employers to appeal, if not at the initial stages, and then certainly at the NEC appeal level where decision-making tends to predominantly repose in Appeal Committees. When that language is not so clear, we must be able to interpret the structure of the code of conduct as a whole to establish whether a right of appeal avails to the employer.
In the case of the National Code, the right to appeal may exist if the employer and workers agree that disciplinary committee shall be the disciplinary authority at the work place and the right of appeal is availed to both parties. Where the employer acts in accordance with section 6 and appoints the disciplinary authority, the right to appeal by the employer is then removed because the disciplinary authority will be an agent of the employer when he/she presides over disciplinary matters.
- Mugumisi
Legal Practitioner with a special interest in Labour law
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