The principle of audi alteram partem (“listen to the other side”) is at the core of labour law.
Fundamentally, it provides that an employee should not lose his job unless he has been given a fair opportunity to hear what it is that the employer holds against him and to state his own case in relation to any allegations levelled against him.
In the case of Tubecon (Private) Limited versus NUMSA (1991), arbitrator Brand quoted Seneca who more than 2 000 years ago said:
“He who has come to a finding without hearing the other party has not been just, even though his finding may have been just.”
The necessary and sufficient condition for satisfying the audi alteram partem rule is the holding of a procedurally and substantively fair disciplinary hearing.
A hearing is necessary to ascertain facts. No employee may be dismissed from his job without a hearing being held.
Over the years, the courts have set guidelines for what can be considered a fair hearing. However, no single case sets out all the requirements comprehensively and systematically.
The most comprehensive guidelines seem to be the ones found in the South African case of Mahlangu versus CIM Deltak (1986).
The court made it succinctly clear that the burden of proving an employee’s misconduct or poor performance lies with the employer.
Simply put, he who alleges must prove. An employee has the right to challenge any statements by the employer that are detrimental to his credibility and integrity.
The court went on to list those ingredients that are important for a fair disciplinary hearing to be held. These are:
the right to be told the nature of the offence or misconduct with relevant particulars of the charge;
the right of the hearing to take place timeously;
the right to be given adequate notice prior to a disciplinary hearing;
the right to some form of representation (the representative could be anyone from the workplace, either a workers’ committee representative, or a colleague so as to assist the employee and ensure that the discipline procedure is fair and equitable);
the right to call witnesses;
the right to an interpreter;
the right to a finding (if guilty, he has the right to be told the full reasons why);
the right to have previous service considered;
the right to be advised of the penalty imposed (verbal warnings, written warnings, dismissal) and
the right of appeal to a higher level in the organisation.
Zimbabwean case law also tries to define what the audi alteram partem rule is.
In the 2003 High Court case of Chirenga versus Delta Distribution, Justice Smith ruled that where an employee charged for misconduct opts to have legal representation, and his request is turned down, the requirements of the audi alteram partem rule would not have been met, even where the code of conduct is silent on the right to representation.
In another High Court case of Rwodzi versus Chegutu Municipality (2003), Justice Mavangira went further and laid down seven steps that should be taken to ensure the audi alteram partem rule is complied with where disciplinary charges are brought against an employee. The steps are:
the employee should be given reasonable notice of the impending hearing. The reasonableness of the amount of notice given will depend on factors such as the seriousness and complexity of the case;
the hearing must precede the decision;
the hearing must be timeous, to ensure that it takes place when the facts are still fresh in the minds of the parties and their witnesses.
However, where the employee requires time in order to prepare for the hearing or to arrange for representation, he should be given a reasonable opportunity to do so;
the employee must be informed of the charge(s) against him, to meet the need for adequate preparation;
the employee should be present at the hearing, but if he refuses to attend the hearing without good cause or has absconded the employer may be entitled to proceed with a hearing in his absence;
the employee must be permitted representation and
the presiding officer must be impartial.
If you look closely, these guidelines mirror the ones listed in the Mahlangu versus CIM Deltak case mentioned above.
Most organisations’ registered codes of conduct meet the criteria laid own in the said case law. Where your code of conduct violates or does not meet such criteria, it is advisable to either amend or replace it.
Let me hasten to say that the guidelines laid down by the courts need to be interpreted cautiously.
There is a propensity, especially on the part of employees to misconstrue the meaning of these court judgements.
For instance, it would be absurd for a qualified chartered accountant to demand to have an interpreter in a hearing in which a white manager is presiding.
That is likely to be dismissed as being frivolous and vexatious.
Of course, it will be. However, such demand may be taken seriously in circumstances where the accused person is an unsophisticated, lower level employee.
In the same vein, insisting on calling witnesses where there is clearly no need for them is not likely to assist the accused employee.
For employers, the due disciplinary process may be unpleasant but it has to be complied with. If you violate the audi alteram partem rule, the courts may order you to either reinstate the employee you have dismissed or to pay damages.
The “you are fired!” scenes we are bombarded with in movies and soaps on a daily basis are not a reflection of the reality on the ground.