GUEST ARTICLE: Disciplinary Appeal Not Mandatory- Court

By Dickson Jere

An ABSA bank employee was summarily dismissed after being charged with an offence. He had earlier before the Disciplinary Committee, which found him wanting. However, under the ABSA disciplinary procedures, he was supposed to appeal his dismissal within the company if not satisfied with out the outcome. The employee in this case, however, decided to sue the company and ignored the internal disciplinary appeal process of ABSA.

At the High Court, the bank raised a preliminary point of law in form of objection to the case. It argued that the dismissed employee case should be thrown out as he did not exhaust the internal disciplinary processes. Simply, that he came to Court prematurely as he still had the chance to clear himself within the company appeal process.

The High Court Judge disagreed with the bank and ruled that the internal appeal process within ABSA was optional and that the employee can ignore it and sue directly in the High Court.

Dissatisfied, the bank appealed to the Court of Appeal, which had to determine whether an employee can sue without exhausting the internal disciplinary processes. Having analyzed the disciplinary code of ABSA, the Judges opined that the internal appeal is not mandatory after one had been dismissed.

“We absolutely agree with the trial judge that this clause places no compulsory obligation on an employee, upon being dismissed from employment to activate the appeal process,” the panel of judges opined.

“Under this clause an employee simply reserves the right to appeal and is in no way compelled to do so,” the Court said, adding that if an employee elects to appeal, he or she should do so within 10 days after receipt of the decision.

The court said since the appeal process was optional, the only process that a dismissed employee was meant to exhaust before suing in the Industrial Relations Court was the initial disciplinary hearing that led to his dismissal.

“But in any event, the Supreme Courts guidance on the main question is clear that a cause of action is not necessarily lost by reason merely of the fact that the internal administrative disciplinary proceedings were not concluded or acceded,” the Judges said.

The case will now proceed to trial.

Citation – ABSA Bank Zambia v Jonas Matende – Appeal/65/2022 and Judgement delivered on 25th March, 2025.

The court has also indicated that one does not need to go through internal process of appeal if the said disciplinary procedures are non existent or are unduly prolonged or indeed totally ineffective. The rationale of this ruling is that companies should not be allowed to get dismissed employees on a queue waiting for an appeal to be heard, which may take a long time thereby denying them Justice.