Trade unions and workers, in general, have over the years made representations, in vain, to review the way disciplinary committees are conducted. A Disciplinary Committee (DC) is usually set up by the employer who selects and remunerates the Chairperson. The recommendation of DC does not bind the employer, who is as such always free to reach its own decision in respect of the future employment of the employee. 

The main critic of DCS is that the way they are set up does not afford any protection to employees and the reason being (i) the Chairperson who pronounces himself on the matter is selected and remunerated by the employer and (ii) the weight that is attached to his recommendation. The Chairperson, being remunerated by the employer, undoubtedly follows his directives and complies with his instructions, whatever be the merits or demerits of the matter. In almost all cases, the outcome of the DC is predetermined and leads to the eventual dismissal of an employee.

Coincidentally, there is the same echo in other countries. The Indian Commissioner on the BCCI enquiry, K. Madahvan, stated in no uncertain terms that when it comes to a DC “it looks like everything is predetermined” and Graham Bean, a former Compliance Officer of the English Football Association, stated in 2012 that the whole disciplinary process in the United Kingdom is a “joke”. In Mauritius, all Governments, irrespective of political parties, bear their share of responsibility for the current state of affairs. It is understood that the private sector has always adamantly opposed any changes and successive Governments have yielded to political pressure, making disciplinary committees no more than an eyewash. Ironically, politics, said an American socialist, is the gentle art of getting votes from the poor and campaign funds from the rich by promising to protect each from the other. 

The Workers’ Rights Act was presented with great parliamentary hoopla and rightly so. It should be said that the Act is heavily tilted in favour of the employee but is somewhat tangential when it comes to disciplinary committees. However, there are few provisions concerning DCS. Section 64(5) of the Workers’ Rights Act, on protection against termination of the agreement, provides for the employer who decides to hold a disciplinary committee to provide, at the request of the worker, such information or documents as may be relevant to the charge and section 64(7) caters for the worker answering any charge to have the assistance of a representative of a trade union or a legal representative or both or an officer from the Ministry of Labour.

“The Chairperson, being remunerated by the employer, undoubtedly follows his directives and complies with his instructions, whatever be the merits or demerits of the matter.”

Any written statement acknowledging guilt of the worker obtained at the instance of his employer is not admissible as evidence before a disciplinary hearing, or any authority, or any court pursuant to section 64(9) of the Act. Section 64(10) caters for an employer to give, within seven days of the receipt of the request, a written copy of the minutes of proceedings of the disciplinary hearing to either the worker who has appeared before the disciplinary hearing or to the person assisting the worker in the disciplinary hearing. 

More importantly, provision should be made for a copy of the recommendation of DC to be communicated as well. According to section 64(11) (a), save and except for few exceptions or when both parties agree to extend the delay, the disciplinary hearing initiated against the worker should be completed within 30 days of the date of the first oral hearing. Unfortunately, the main problems of the choice of the person presiding over a disciplinary committee and the consideration given by the employer to the recommendations of the DC have not been addressed. 

Under section 35 of the Employment Relations Act, regarding promotion of good employment relations, provision is made for a Code of Practice which is found at the Fourth Schedule to the Act. Part X of the Fourth Schedule on Disciplinary Procedures is comprehensive and elaborate but can be used as a guide only as it has no force of law. This can only imply that the legislator was fully aware of the problem but has been unable to address the problem head-on and deliberately preferred to soft-pedal on the issue due to, presumably, pressure from employers.

Paragraph 150 of the Code of Practice provides for the person presiding over the formal hearing to be a person who is able to make an independent decision and who has not been involved in the investigation of the case and at paragraph 156, where the worker objects, on reasonable grounds, to the disciplinary proceedings being presided over by the person designated to do so, it may be appropriate to bring another person to chair the meeting. 

However, section 35(2) stipulates that a failure on the part of any person to observe any provision of the Code of Practice shall not result in that person being subject to proceedings of any kind. As a result of that proviso, the employer will always find a way out and not be bound to follow the Code of Practice. The situation is somewhat different for employees covered by a Procedure Agreement defined at section 51(1) of the Employment Relations Act as “where recognition has been obtained under sections 36(3), 37(4) or 38, the relationship between a trade union or group of trade unions and an employer or a group of employers, as the case may be, shall, subject to subsection (2), be regulated by the procedure agreement set out in the Seventh Schedule, with such modifications and adaptations as may be necessary”.

Article 14(2) of the Seventh Schedule mentions that where the employer considers that the worker may have to answer a charge of misconduct which may lead to his summary dismissal, the employer shall appoint a disciplinary committee of at least one independent person, to hear the worker and make its recommendations. Article 14 (3) goes as far as to suggest that the worker or the union may contest any person forming part of the Disciplinary Committee and shall submit his or its objections together with the grounds for such objections to the employer not later than 24 hours after having been informed of the name of the persons appointed to hear the matter. How all this will work in practice is yet to be seen but here again, the employer has a way out under section 51(1) where mention is made that the Procedure Agreement can be modified and adapted as may be necessary. Therefore, the employer is not bound to follow the model at the Seventh Schedule to the Act. 

Disciplinary Committees are the basis on which most employers rely to dismiss an employee. Unfortunately, our law as it stands does not do enough to protect employees in that respect. The cure may lie in the appointment of the Chairperson being transferred from the employer to either the trade union or any other organization, like the Commission for Conciliation and Mediation. Another option can be a situation where the employer still bears the cost of the DC but the Chairperson is chosen by mutual consent (i.e. both the employer and employee decide on who is going to chair the DC). In such a situation, the Employment Relations Tribunal can come up with a list of prospective Chairpersons, out of which list, both the employee and the employer can select a Chairperson.

As a last resort, the DC can be set up by the Ministry of Labour which appoints the Chairperson, whilst the employer can be represented by Counsel and the employee by Counsel or trade union representative. Consequently, the recommendation of the DC also needs to be made authoritative and communicated to the employee and the Ministry of Labour. The way DCs are conduced is a blatant injustice and as Martin Luther King said: “Injustice anywhere is threat to justice everywhere”. If the law has to protect the employment of a worker in the real sense of the word, the ethos of disciplinary committees needs to be reviewed; otherwise they will remain a mockery.