DULY HOLDINGS v CHANAIWA 2007 (2) ZLR 1 (S)

Flynote

c Administrative law ” rules of natural justice ” rule requires no more than domestic tribunal acts according to the common sense precepts of fairness

Employment ” code of conduct ” proceedings under ” code not covering specific situation flexible approach to be followed” management adapting procedures to ensure fair hearing ” rules of natural justice D ” rule requires no more than the domestic tribunal acts according to the common sense precepts of fairness

Headnote

The appellant company, though its managing director, brought disciplinary proceedings against the respondent, who was himself a branch manager. The appellant's code of conduct did not provide specifically for the ^εsituation where a branch manager was charged. The managing director chaired the initial disciplinary hearing, which found the respondent guilty. The code provided for an appeal to the branch manager and the operations manager in the relevant section. The managing director ensured that a committee that excluded himself determined the appeal. The respondent's appeal to that committee failed. The Labour Court ^εupheld the respondent's argument that the disciplinary proceedings had not been conducted in compliance with the code of conduct. It also found out that the rules of natural justice had not been observed in the manner in which the disciplinary proceedings against the respondent were held.

Held, that the appellant did the best thing in the circumstances in order to ^εguarantee the respondent natural justice in the absence of a provision in the code providing for the equivalent of a "head of department" for the respondent who was, himself, the head of his branch. In the absence of a provision in the code specifically covering the conduct of disciplinary proceedings against a branch manager, the appellant had ensured that ^εthe respondent's case was properly heard before the disciplinary committee constituted and chaired by the managing director for that purpose.

Held, further, that the respondent was given ample opportunity to be heard in accordance with the audi alteram partem rule. The gap in the code left the field open for the relevant senior staff to apply disciplinary procedures that, in their view, would accord justice to the offending employee. The rules of natural justice require no more than that the domestic tribunal acts according to the common sense precepts of fairness. In the circumstances of this case, it could not be said that the rules of natural justice were not observed. The respondent was therefore, not prejudiced in any way by the disciplinary procedures which were followed.