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Access to justice: Discipline and grievance mechanisms

15 May 2023 at 11:26hrs | Views
On the Teachers' Agenda Weekly; we focus on access to justice for teachers. We invite teachers to share their feedback on the justice system for teachers in the public service.

Section 69 of the Constitution of Zimbabwe provides for the right to a fair and public trial within a reasonable time, the right to fair, speedy and public hearing before any court, forum or tribunal in determination of civil rights and obligations, the right to access the court, forum or tribunal established by law in resolution of disputes as well as the right to legal representation.

The existing laws and practices with regards to the teaching profession may be an affront to these constitutionally protected rights. It must be understood that access to the Labour Court for example for a teacher filing an appeal or application is not free.

The filing of the appeal or application attracts court fees which are so astronomical to the extend of literally barring litigants from appealing or filing applications. Apart from court fees, there are also costs payable to the Sheriff for service of notices of set down which costs are turning to be beyond the reach of many workers especially those who would have been discharged from the service or employment. Access to justice therefore has been significantly compromised by costs factors.

Further a look at the procedures in discipline, in terms of section 45 (3) of the Public Service Regulations, when appearing before a disciplinary committee an employee is allowed to be represented by a legal practitioner (registered as such in terms of the Legal Practitioners Act). The costs of enlisting legal counsel are not affordable to the already struggling teachers as one hours' work can gobble the entire teachers' monthly salary. The question that arises is why trade union officials or fellow employees are not allowed to represent their fellow members and workers at these stages. It also boggles the mind why at such inferior tribunals, representation is restricted to legal practitioners only whereas at the Labour Court level, which is a higher court of record, trade union officials are permitted. Only towards the end of 2019 did the State begin to allow trade unionists to represent their members but that is only discretionary and not by law.

The composition of disciplinary committees in terms of section 43 of the Public Service Regulations does not bring the balance as is with those set under the Labour Act. The disciplinary committees set under the Public Service Regulations are made up of all representatives of the employer and no representatives of the employees. The neutrality expected of same cannot be realised. A disciplinary committee is defined as a committee set up at the workplace of establishment composed of employer and employees' representatives, to preside over and decide over disciplinary cases and/or worker grievances. The composition of disciplinary committees under section 43 of the Regulations therefore violates the principles of natural justice and the right to fair hearing.

The Ministry of Primary and Secondary Education has a practice of ceasing salaries of members who would have been absent from the from duty for a period of fourteen (14) days. This is done without the concerned member being suspended from work or being subjected to any disciplinary proceedings. The cessation of a salary in itself amounts to a punishment and as such powers to cease a salary must be used in situations where the affected member has been subjected to disciplinary proceedings or has been duly suspended without salary in terms of the Public Service Regulations. There is no provision in the Act and Regulations which provide for such cessation of salary and one wonders as to under what powers does the employer cease the salary. The powers are executed through Form Ed. 91(a) which must be completed immediately after fourteen (14) days of a member's imprisonment /restriction/ absence from duty without being granted leave of absence.

Another unfair development that has been taking place over the years is with regards to members who would have been suspended from duty. The maximum period for suspension in terms of the Public Service Regulations is three months. If the three months lapsed the suspension order is automatically cancelled by operation of law unless duly extended by the Commission for a fixed duration and on written notice to the member concerned. In an unfair development, such suspensions would lapse and the employee would return to work but the employer would not reinstate the employee on the payroll. The employer would verbally argue that the employee would only be reinstated on the payroll after the misconduct has been determined which position is contrary to section 49(3) (b) of the Regulations. It would take the employee to approach the Courts for a declaratory order for them to be reinstated on the payroll, something which is supposed to be automatic by law.Such a development is an attack to the presumption of innocence principle.

The grievance procedures in terms of sections 54 and 55 of the Public Service Regulations bar access to the Courts. Once a grievance process is followed up in terms of these section and the Commission has made its findings, there is no other stage of appeal available. It would thus mean that once the Commission has made a final decision on a grievance that will be the end of the matter even if the member remains aggrieved. The absence of an appeal process therefore means the end of the matter. This is contrary to grievances in terms of the Labour Act where one may approaches a Labour Officer or a Designated Agent of the employment council for redress through conciliation or even up to Arbitration and the Courts. There exist no conciliation or Arbitration under the Public Service Act and Regulations.

An extract from ARTUZ Labour justice index 2021.

"This is the first instalment of Teachers' Agenda Weekly. The publication aims at educating teachers of their constitutional rights and how the same are violated by both ancillary laws and administration practices. This will enhance the agency of Teachers to demand labour justice and further raise awareness among citizens. Pressure will be applied on duty bearers to institute reforms." own trail.

Source - ARTUZ