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    Sunday, 15 April 2018

    Unfair dismissals at the work place


    A number of employees have been unfairly dismissed from their work but are not aware of steps they should take to seek recourse. This could be largely due to ignorance or lack of resources to pursue their cases to finality. Unfair dismissals can occur under a number of circumstances which I shall enumerate and thereafter, discuss possible avenues affected employees can pursue in order to have it addressed.
    An employee is held to have occurred if an employer fails to show that this dismissal is in terms of the code. The implication being that an employee should be charged for an act of misconduct as outlined in the employment code governing that industry or undertaking. A registered code or in its absence, a national code- SI 15 of 2006, stipulates behaviors that constitute misconduct, procedures to be followed in disciplinary proceedings, composition of disciplinary committees, appropriate penalties to be levied and appeal procedures to be followed among other important directives. Failure to follow stipulated procedures and substantial requisites by the code can be interpreted as unfair dismissals by courts or any appellate bodies like NEC.
    An employee has a right to be heard meaning in any dismissal, a hearing must precede, where a record of proceedings, summary of evidence adduced, a determination and reasons for such a determination should be recorded. In the hearing, the employee has the opportunity to defend self. Before the hearing, the employee must be informed of charges levied against him and must be given sufficient notice to prepare for his defense which is a minimum of three working days. The employee must be present at the hearing unless he absconds and be allowed representation by a fellow employee, a workers committee member, a trade union official or a legal practitioner. The employee has a right to call witnesses and have them cross examined. The disciplinary committee must allow mitigation before passing its penalty if respondent is found guilty. In the case of Air Zimbabwe V Mlambo {1} ZLR 220 {S}, a one day notice was held inappropriate and the dismissal was rendered a nullity. In the case of Mtedzwa V TM Supermarkets LC/H/263/04 where the disciplinary committee imposed a penalty greater than stipulated by the code, on appeal, the dismissal penalty was rescinded.
    An unfairly dismissed employee can seek recourse through an appeal to the NEC in their industry and if there is not any, at the ministry of labor where the matter can be revisited. If it is proven that an employee has been unfairly dismissed, an order of reinstatement with back pay and punitive damages is ordered from the date of dismissal. This can come at a huge cost to employers hence the need to understand procedures to be followed before dismissing an employee no matter how apparent the offence committed is. The disciplinary Committee, workers committee who lead the defense and management who are normally complainants should be trained on hearing procedures and code requisites to avoid unfair dismissal pitfalls.
    Mr Togaraseyi Zvomoyo is a Managing Consultant with Labor Standards Pvt Ltd an HR and Labor Consultants Firm and is an Associate Consultant with Industrial Psychology Consultants - IPC. He is also a part time Lecturer with Reformed Church University in the Human Resources Management Dept – Harare Campus and a PhD Student in Human Resources Management. You can conduct him on 0774 805 766 or email: tzvomoyo@gmail.com
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