Disciplinary Procedures under section 6 of the National Employment Code of Conduct in Zimbabwe

Section 6 of the Labour (National Employment Code of Conduct) Regulations, 2006 (‘the Model Code’) provides a default disciplinary procedure mechanism where no existing internal code of conduct or industry specific code of conduct exists.

In terms of section 6(1) of the Model Code, an employer must have a good reason to believe that an employee has committed a misconduct as defined in section 4 of the Model Code. If this is the case, an employer has a discretion to suspend such employee with or without pay and benefits and furnish the employee with a letter of suspension setting out the reasons and grounds for suspension.

Once an employee has been served with a suspension letter in terms of section 6(1) of the Model law, the employer has fourteen (14) days to investigate the matter and to conduct a hearing into the alleged misconduct of the employee.

At a disciplinary hearing into the alleged misconduct of the employee, an employee has the right to at least three (3) working days’ notice of the proceedings against him or her and to know the charge that he or she is facing.

In Zimbabwe, such an employee is also entitled to appear in person before his or her employer, employer’s representative or disciplinary authority as the case may be and be represented at a disciplinary hearing by a fellow employee, worker’s committee member, trade union official or a duly registered legal practitioner and afforded an opportunity to call witnesses and have them cross – examined.

It is important to note that in terms of the Model Code in Zimbabwe, an employee has a right to be informed of the reasons of a decision reached by the employer, employer’s representative or disciplinary authority, as the case may be, and to address in mitigation before the ultimate penalty is imposed.

In Muchechetere v Zimbabwe Broadcasting Corporation (Pvt) Ltd & Others SC 143-21 at paragraph 42, it was held that:

“The court finds there is merit in the appellant’s submissions as outlined above. While it is inelegantly formulated, the import of the disciplinary procedure laid out in s 6 of SI 15/2006 is that disciplinary proceedings against an employee facing misconduct charges are conducted by the employer, or a disciplinary authority appointed by it. The tone of s 6(4)(b) makes it clear that where a disciplinary authority is appointed, it is expected to conduct the hearing as set out therein, including hearing submissions in mitigation, as well as determining and imposing the ‘ultimate’ penalty. The hearing in other words is only completed after the ‘ultimate’ penalty is imposed. The impression created in the end is that the disciplinary authority, once it starts the hearings, enjoys a great measure of autonomy in the conduct of the hearing, until it has completed the process.”

Furthermore, and according to the facts and circumstances of the case, employers in Zimbabwe acting in terms of the Model Code, have a discretion in terms of section 6(2) of the Model Code to serve a notice in writing on the employee concerned terminating his or her contract or employment, if the grounds for his or her suspension are proved to his or her satisfaction.

Alternatively, an employer in terms of section 6(2) of the Model law, also has the discretion to serve a notice in writing on the employee concerned removing the suspension and reinstating such an employee if the grounds for suspension are not proved.

In Nhari v Zimbabwe Allied Banking Group 2013 (2) ZLR 583 (S), it was held that a suspension must be based on a belief that a misconduct as defined has been committed. Employers must have good cause for such belief. Only then may an employer consider suspending an employee. The procedure outlined in section 6 of the Model Code has to be followed where an employee is suspected on reasonable grounds of having committed an act of misconduct. Resultantly, an employer need not suspend an employee in all cases, where an employer decides to suspend an employee, the employer has an obligation to comply with the requirements outlined in section 6 of the Model Code.