Labour Perspectives: Most employment codes of conduct badly drafted

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Prior to 1990, the rights of employers to terminate employment were limited. In terms of the regulations then (Statutory Instrument 371 of 1985), the employer could only suspend an employee and then apply to the Minister of Labour for permission to dismiss.

Towards the end of 1990, the government published Statutory Instrument 379 of 1990 which allowed national employment councils (popularly known as “NEC”) and works councils to draft and register employment codes of conduct with the Registrar of Labour Relations.

Once registered, the code of conduct became the tool for dealing with disciplinary matters in the sector or workplace concerned without reference to the Ministry of Labour.

Statutory Instrument 371 of 1985 only continued to apply where an organisation had no registered code of its own or where a certain section of the workforce, such as managerial employees, were not covered by the code of conduct.

The birth of codes of conduct was lauded as a messianic way of self-regulation rather than submitting to the tedious and protracted ministry processes.

Every organisation or NEC rushed to have codes of their own. It appears that during the time one generic code was passed from organisation to organisation in a typical “copy and paste” style without customising the code to suit particular circumstances for the companies or sectors concerned. Soon, problems began to emerge.

It became evident that these codes of conduct suffered from a number of flaws. Organisations found it very difficult to implement the codes resulting in many “short-circuiting” the process.

Sadly, in most cases, this resulted in fatal consequences for the companies concerned with the courts declaring those proceedings a legal nullity.

Commonsensically, failure to adhere to existing and established procedures in any operating system negates the whole purpose of ever putting those procedures in place.

Section 101 of the Labour Act as read with Statutory Instrument 379 of 1990 (as amended) lays down what must be contained in a code of conduct.

For a code to be registered, it must specify those acts or omissions for which an employee may be disciplined or dismissed; to whom the code applies; procedures to be followed in case of a breach; penalties for breach; the committee, person or authority responsible for administering discipline; right of the employee to be heard; time limits for handling disciplinary cases; provision for appeal and so on.

The majority of codes registered in the 1990s fall far short of these minimum requirements.

Courts have drawn attention to this in a number of judgments. In the case of ZFC Limited vs Malayani (Supreme Court Judgment 34/1999), the court argued that “. . . We have often remarked that Codes of Conduct are badly drafted . . . This one is particularly so . . . It would seem imperative to us that a great deal more care should be taken by the Registrar of Labour Relations before he agrees, in terms of section 101(2) of the Act, to register a code of conduct. This code in particular needs redrafting.”

Similarly, in Delta Operations (Pvt) Ltd t/a OK Zimbabwe vs Soko (Supreme Court Judgment SC 108/2000), Justice McNally observed:

“It must be added that the code of conduct, as a legal document, is not worthy of so large a company as the appellant and should never have been registered by the Registrar . . . the whole document needs revision by a competent lawyer.”

The code in question had loose and weak definitions that rendered it user-unfriendly.

As a further pointer to the deficient state of most codes, the court in the case of Malimanjani vs CABS (Supreme Court judgment SC 47/2007), slammed an employee who attempted to escape justice by taking advantage of “shoddy drafting by laymen”, in reference to the CABS code.

I’m not sure whether these codes that received strong censure from the courts have since been revised. But this is only a tip of the iceberg. There are many codes that are in a more appalling state that those cited above. Some codes are just a hotchpotch of words and phrases with no coherence at all, such that it would be proper to call them “codes of misconduct”.

I have come across codes drafted in a manner which leaves one wondering if it is possible to do anything right in the company.

Codes of conduct miss the point in many areas. For reasons of space, it is not possible for me to narrate them all here.

Suffice it to say that the courts place a high premium on negotiated agreements hence organisations are bound by the system of industrial justice which they voluntarily held out as being applicable in their respective situations.

I respectfully disagree with McNally’s view in the OK Zimbabwe case that codes need drafting or revision by competent lawyers.

There are many companies with good codes which are a joint effort of management and worker representatives.

Only the exercise of common sense and good judgement is necessary. Lawyers, besides being expensive, can make the whole document too legalistic that it becomes difficult to comprehend.

However, I have seen instances where negotiations to come up with or amend an existing code end up in a state of limbo as worker representatives seize upon the opportunity to settle old scores with management or to force management to accede to some demands as a precondition for their cooperation.

This mindset is not only unfortunate but self-defeating and should be discouraged.

In drafting and negotiating a code, close consideration should be given to any special circumstances pertaining to each sector or workplace.

Rather than being superfluous, it is important to be short and to the point. Progressive organisations view codes of conduct as an integral part of their culture, not as side notes to be referred to only after rules have been breached.

Well-drafted codes offer many benefits and make your organisation a better place to work.

The Labour Act, under which these codes of conduct were created, has undergone a number of changes since it came into operation in 1985, with major amendments in 1992, 2002 and 2005.

Why should your code remain static when the enabling Act itself has been in a state of metamorphosis?

A dismissed employee or manager who knows their case is weak on merits will always try to latch onto the well-known drafting loopholes in the disciplinary code in order to get a lifeline.

If organisations are aware of deficiencies in their codes, why is it that they take years without either amending them or negotiating new ones?

Due to the bottom-line mentality afflicting the majority of employers, it seems prudent to sideline bothersome people and issues in favour of revenue-generating activities.

But the price for such a misalignment of priorities will soon hit home and come as a rude awakening to bemused executives.

Is it not a fact that organisations have lost cases worth thousands of dollars after mishandling dismissal cases due to badly drafted codes?

A poorly written code is as good as having no code at all. On the other hand, a recent Harvard Business School study cautioned:

“A world-class code is no guarantee of world-class conduct. A code is only a tool, and like any other tool, it can be used well or poorly, or left on the shelf to be admired or to rust”.

Isaac Mazanhi is a labour analyst
writing in his own capacity.