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Workplace injustices

21 Dec 2020 at 10:13hrs | Views
Most injustices that occur at the workplace go unreported and are swept under the carpet for many reasons. Employees often feel powerless against the employer and are afraid of intimidation and victimisation.

The timidity and lack of vigilance by workers' committee and trade union representatives exacerbates these injustices. I was recently approached by two friends of mine who had been charged for various forms of misconduct and desperately needed representation in their disciplinary hearings.

A cursory glance at the charges and the evidence of the employer showed that the charges were precipitated by prejudice, arrogance, and the bullying tactics of their immediate supervisor. Supervisors can maliciously build up a case against employees and it is easy for employees to lose their jobs if they fail to find sutable persons to represent them in disciplinary hearings. The element of institutional bias inherent in proceedings of this nature tilts the scales of justice heavily against employees and it becomes almost impossible for them to get a fair hearing. I was confronted with a situation where the chair of the hearing did not sufficiently understand his role and did not even attempt to conceal his biased attitude against one of the employees. When I protested that the facts failed to establish the elements of the offence and that the employer had therefore failed to establish a case against the employee, he grumblingly retorted that in his experience and long service with the organisation an employer is not just charged for nothing. There must be a reason why this employee was charged. This rigid and biased approach by a chair of a disciplinary committee is wrong.

The chair of a disciplinary committee is an impartial arbiter and must not take a position or display a biased or prejudicial attitude. The fact that there is a risk of institutional bias in proceedings of this nature requires chairs of these hearings to exercise some caution to avoid the possibility of employees losing their jobs because of trumped up charges against workers. The timidity of workers representatives did not help the situation. I was left wandering exactly what their role was in proceedings of this nature. It was as if they were just there for minute taking and my opinion is that it is better for them not to be there at all because they give some legitimacy to these flawed proceedings. One represenative was bold enough after our final appeal to confide in me that the chair of the first hearing had strongly lobbied them to find the employee guilty and to pass the sentence of dismissal because he was of the opinion that this employee was rude and had an attitude problem towards management. That cannot be allowed. A case must be decided on its own merits and other issues which do not appear on the record of the proceedings cannot be allowed to influence the decision of the committee. It is common that most of these hearings are just a farce as decisions would have already been made to get rid of an employee. The hearing just becomes a formality to show the employee the door.

The predicament of these two friends of mine reminded me of my own experience when I was charged for misconduct during my brief tenure as a magistrate. Like in the case of the two employees, my immediate supervior had cleverly orchestrated charges against me and these charges were hastily brought against me without proper and careful investigations having been undertaken. I elected not to use the services of a legal representative because I thought that there was simply no case against me. I acquitted myseld quite well in my defence and mitigation but the element of institutional bias worked against me. The three member panel clearly represented the interests of the employer and it was impossible for me to get a fair judgment. It became clear to me that once you are charged by this organisation it is as good as if you have been dismissed. A hearing is just a waste of everyone's time but becomes indispensable because an employee cannot be dismissed without following this procedure.

I had joined the magistracy upon my return from the USA on a prestigious fellowship program in law and human rights. I had met and shared experiences with fellows from across the globe about issues pertaining to the law in general and challenges in promoting a culture of human rights and social justice in the world. Some of these fellows served at the bench as judges, some were prosecutors, academics, and lawyers in their home countries. Fellows spoke passionately about the judiciary and had high hopes that they would make a meaningful contribution in pursuit for justice in their home countries.

I found myself suddenly envying a career in the judiciary. I knew the challenges that existed in the Zimbabwe judiciary particularly the poor conditions of work, and a justice system that is marred by politics, corruption and which is essentially 'captured' by the ruling elite. But I was willing to take a chance. I had a good masters degree in law from a good university in South Africa and I was eyeing a career in academia and international civics but I was influenced by my fellowship experience to shelve this dream and take a plunge and swim with all kinds of sharks in Zimbabwe's compromised judiciary system.The fellowship program encouraged its alumni to take up positions in public service and I thought that joining the magistracy was my own little way of giving back to the community. I was lucky that my return to Zimbabwe coincided with a call of over fifty vacancies in the magistracy. I sailed through the interviews but what I hoped to be an immensely enriching and exciting experience turned out to be a nightmare.

For an organization which strives for world class justice there is no justice at all for its employees. Or maybe there is selective treatment of its staff. My immediate impression of the judiciary system in Zimbabwe particularly the magistracy was that it resembled some military clan and that you can only survive if you are connected. The recruitment process on its own is shoddy and promotions are made not on merits but on other grounds. I was unfortunate to be deployed to a station manned by a supervisor who was so desperate for a promotion and who constantly reprimanded me even for silly misdemeanors.

She would remind me that I was lucky to have made it through the selection process and should work hard to make a good impression on her that I was indeed fit to be a magistrate. I discovered very late that she felt insecure and intimidated by my superior qualifications and thought that making reports about me to her bosses was going to discredit and disqualify me from any promotion. And she did a fine job.

I also discovered that there is some informal hierarchy in the magistracy. The old guard which joined this institution a long time ago and are desperate to remain relevant despite their now obsolete and inferior qualifications. They will do anything to please their masters and to cover up their qualifications deficits. They can lie, misrepresent facts, or exaggerate things. Those who joined through connections and are

untouchable even when they commit serious acts of misconduct such as corruption and criminal abuse of office. And the overambitious and scheming type. This is the category where my immediate supervisor belonged. This category is so desperate for promotions and will do anything, even sacrifice other colleagues to impress and get good recommendations for promotions. It is a tragedy that some organisations regard the injustices perpetrated by this category of people against their fellow workmates as an amazing and remarkable leadership quality deserving some form of recognition and applause. You will often read condolence messages and obituaries claims that they had rare leadership qualities, strong work ethics, or served the organisation with distinction. This is the category which unleashes terror on Zimbabwe's poor workers and is responsible for most workplace injustices.

Mthokozisi Nyathi is a legal consultant with a passionate interest in worker' rights, human rights and social justice advocacy. He is a past fellow of the Hubert. H Humphrey fellowship in Law & Human Rights. He can be reached at ​mmnyathi@gmail.com​or at 0775923957

Source - Mthokozisi Nyathi
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