When a group of employees commit an offence, the question will often arise as to whether a joint hearing or separate individual hearings should be held.
Situations of collective misconduct can and do occur. A good example would be an illegal collective job action.
Courts in Zimbabwe and elsewhere have generally frowned at the practice of collective punishment.
While facts may be the same in respect of all workers, does it mean that such workers should be subjected to the same penalty despite varying individual circumstances?
Let us look at two landmark court cases that dealt with this matter. I will quote extensively from the judgments concerned so as to expose the views of the court in each case.
The first is the 1987 South Africa case of NUM & Others vs Durban Roodepoort Deep where a number of employees were dismissed for faction fighting.
The employer did not hold hearings citing a number of reasons, including that it was not feasible to hold hearings due to the large number of people involved.
In this case, 348 Xhosa employees were involved. The court was unimpressed by this reasoning and held that the employer could have arranged for any suitable procedures, appropriate in the circumstances, whereby it could have put across the charges to the employees concerned and afforded them a fair and reasonable opportunity to respond to those charges.
Said the court: “The fact that it may be simply inconvenient or bothersome to hold an enquiry involving hundreds of employees is not justification to hold an enquiry at all.”
The court went further to disapprove of collective guilt in the strongest of terms. It stated:
“In passing, the court wishes to observe that the concept of ‘collective guilt’ is wholly repugnant to our law. Any policy in terms of which all the members of any group of persons . . . must bear collective punishment for the wrongdoings of some of the members is unacceptable to this court because it runs counter to the tenets of natural justice and is a violation of the well-known principle that a person is presumed innocent until proven guilty. There is a failure of justice even if a single innocent person is presumed to be guilty and made to suffer for the rest”.
Locally, a similar ruling was made in the case of Cargo Carriers (Pvt) Ltd vs. Zambezi & Others (Supreme Court judgment number 82/96).
In this case, 322 employees embarked on a strike after accusing a driver supervisor of being racist.
The employer dismissed the strikers en masse.
The matter was heard at the High Court before Justice Bartlett (as he then was) and involved Robert Zambezi, the chairman of the workers’ committee and seven others as respondents.
The dismissal was declared unlawful and the dismissed employees were entitled to reinstatement.
Cargo Carriers appealed against the decision to the Supreme Court, which appeal was presided over by Justice Gubbay (as he then was).
Justice Gubbay upheld the decision of the High Court and dismissed the appeal with costs. A number of issues were raised in the two appeals, which were that:
l The provisions of the Code clearly envisaged that each person being subjected to disciplinary action should be dealt with on an individual basis, with the right to be heard, the right to representation and the right to present his case. It was therefore not permissible to hold a mass trial and impose the same penalty on all of them.
l The High Court pointed to the failure by Cargo Carriers to comply with the provision of the Code which required that “the background and circumstances of each case must be taken into consideration and where there are good reasons for different treatment, the punishment should reflect this”.
l The Supreme Court noted that in dealing with the 322 employees en masse and in imposing the same penalty upon all of them, there could hardly have been the measured individual assessment of each employee which the Code envisaged. It was doubtful, for example, whether any regard was paid to the disciplinary record and service record of each employee, the possible consequences to him or her of the offence and the comments of the worker’s committee representative.
l The code further provided that anyone alleged to have committed an offence “shall have the right to hear the allegations against him/her” and must be afforded the opportunity of “representing his case before the responsible official”. This implied the right to individual oral hearings, which Cargo Carriers did not hold.
Section 12B (4) of the Labour Act provides that in dismissing an employee, while considering the gravity of any misconduct that has been committed, consideration should also be to mitigatory circumstances such as the length of the employee’s service, previous disciplinary record, the nature of the employment and any special circumstances of the employee.
This makes it mandatory for employers to hold separate, individual hearings even when handling cases of collective misconduct.
According to Wikipedia, collective guilt is the controversial collectivist idea that groups of humans can bear guilt above and beyond the guilt of individual members, and hence an individual holds responsibility for what other members of their group have done, even if they themselves didn’t do this.
This was the principle used to justify the mass shooting of the Romanov family in 1918. In contemporary systems of criminal and civil law, it is accepted that guilt shall only be personal. It therefore follows that disciplinary hearings must be held in respect of all the employees suspected of being involved in any misconduct.
The employer cannot hold the whole workforce collectively responsible for the misconduct.
Conducting individual hearings may be cumbersome especially in cases of collective job action as in the Cargo Carriers case where 322 employees were involved.
What employers should do when confronted with such situations is to follow the provisions of the Labour Act in dealing with strikes, as seeking show cause orders and disposal orders is less onerous than holding individual hearings.