Choos­ing the right fo­rum: Labour court or DDPR

Lesotho Times - - Business -

DIS­PUTES are in­evitable in any re­la­tion­ship; and the em­ploy­ment re­la­tion­ship is no ex­cep­tion. It is there­fore very im­por­tant to know the ap­pro­pri­ate fo­rum to which one may send a dis­pute that may arise in the work­place.

This not only saves time and money but also saves one from the in­con­ve­nience of mov­ing from one fo­rum to the other.

The ba­sic leg­isla­tive frame­work that de­lin­eates which par­tic­u­lar dis­putes is re­solved by which fo­rum is the Labour Code Or­der, 1992, hav­ing been amended over the years.

Both the Labour Court and the Direc­torate of Dis­putes Pre­ven­tion and Res­o­lu­tion (DDPR) are mech­a­nisms cre­ated for re­solv­ing labour dis­putes through third party in­ter­ven­tion.

The Labour Court is an ad­ju­di­ca­tion fo­rum whilst the DDPR ex­er­cises me­di­a­tion and ar­bi­tra­tion (Al­ter­na­tive Dis­pute Res­o­lu­tion - ADR) pow­ers.

It is of pri­mary im­por­tance to high­light that Courts of law exist to re­solve rights dis­putes, that is, those that im­pinge on in­fringe­ment of rights.

The Labour Court has there­fore been es­tab­lished as a spe­cialised Court to ex­clu­sively re­solve em­ploy­ment re­lated dis­putes. These in­clude:

i) Un­fair dis­missals — (Sec­tion 226 (1) (c ) of the Labour Code (Amend­ment) Act, 2000 talks to ju­ris­dic­tion over un­fair dis­missal claims which has been split be­tween the Labour Court and the DDPR, de­pend­ing on the na­ture of the claim.

The Labour Court has ju­ris­dic­tion over the fol­low­ing un­fair dis­missal claims: Un­fair Dis­missals Based on Op­er­a­tional Rea­sons — these are dis­putes that em­anate from re­trench­ments and em­ploy­ers’ re­struc­tur­ing or re­or­ga­ni­za­tion pro­cesses.  Un­fair dis­missal claims based on par­tic­i­pa­tion in a strike or as a con­se­quence of a lock­out — the Court also has pow­ers to de­ter­mine un­fair dis­missals that arise from em­ploy­ees’ par­tic­i­pa­tion in a strike or re­sult­ing from a lock­out.

ii) Un­fair labour prac­tices Claims — (Sec­tion 226 (1) (b) of the Labour Code (Amend­ment Act, 2000) states that the fol­low­ing con­sti­tute un­fair labour prac­tices un­der the Code. They are: Dis­crim­i­na­tion claims; Sex­ual ha­rass­ment cases; Claims over bad faith bar­gain­ing; In­ter­fer­ence by the em­ployer in trade union af­fairs; Dis­crim­i­na­tion against mem­bers and of­fi­cials;

Dis­putes over or­gan­i­sa­tional rights such as ac­cess to a work­place by trade union of­fi­cials.

iii) Work­men’s com­pen­sa­tion claims — the Labour Court deals with work­men’s com­pen­sa­tion claims on the ba­sis of its man­date to re­solve all labour dis­putes, de­spite a pro­vi­sion in the Work­men’s Com­pen­sa­tion Act, 1977 vest­ing such pow­ers on the Mag­is­trate Court.

Ar­guably, the Work­men’s Com­pen­sa­tion Act is out­dated, hence the Min­istry of Labour and Em­ploy­ment’s ef­forts to re­view all leg­is­la­tion un­der its aus­pices, with a view to among oth­ers, har­mon­is­ing such older pieces of leg­is­la­tion with other laws and pre­vail­ing prac­tices.

iv) Dis­putes con­cern­ing the in­ter­pre­ta­tion and/ or ap­pli­ca­tion of the Labour Code and other labour union is con­cerned not with the de­ci­sion but with the de­ci­sion — mak­ing process or the man­ner in which a case was con­ducted.

This could cover is­sues such as ir­ra­tional­ity, il­le­gal­ity or pro­ce­dural im­pro­pri­ety. An ap­peal fo­rum, on the other hand, may re­con­sider the ev­i­dence led and ar­rived at its own con­clu­sion. Judg­ments of the Labour Court are sub­ject to ap­peal and re­view by the Labour Ap­peal Court.

vii) En­force­ment of Labour Court judg­ments and DDPR awards (Sec­tion 228 E (5) of the Labour Code ( Amend­ment) Act, 2000) — This Sec­tion in­di­cates that for ex­e­cu­tion of Labour Court judg­ments and awards of the DDPR, the ap­pro­pri­ate fo­rum is the Labour Court.

viii) Ap­peals from the Pub­lic Ser­vice Tri­bunal (Pub­lic Ser­vice Amend­ment Act, 2007) — In terms of an amend­ment to the Pub­lic Ser­vice Act, 2005 in 2007, the Labour Court may hear ap­peals from the de­ci­sions of the Pub­lic Ser­vice Tri­bunal.

On the con­trary, the DDPR has power to re­solve both rights and in­ter­est dis­putes. Dis­putes of in­ter­est could be over wages. The ju­ris­dic­tion of the DDPR is set out in Sec­tion 226 (2) of the Labour Code (Amend­ment Act, 2000).

These in­clude un­fair dis­missals that do not fall un­der the exclusive ju­ris­dic­tion of the Labour Court. Other dis­putes that may be re­solved by the DDPR are Dis­putes con­cern­ing the un­der­pay­ment or non-pay­ment of monies due un­der the Labour Code.

This means if a dis­pute in­volves the un­der­pay­ment or non-pay­ment of any monies due un­der the Labour Code, an ag­grieved party may ap­proach the DDPR for re­lief.

Ex­am­ples of such dis­putes in­clude claims over pay­ment of sev­er­ance pay, un­paid wages or any ben­e­fit that may ac­crue from the em­ploy­ment con­tract.

Fur­ther­more, the DDPR may also re­solve any dis­pute that may be re­ferred by agree­ment be­tween the par­ties; Dis­putes con­cern­ing the ap­pli­ca­tion or in­ter­pre­ta­tion of a col­lec­tive bar­gain­ing agree­ment; Breach of a con­tract of em­ploy­ment and Dis­putes con­cern­ing Wages Or­der con­tem­plated un­der Sec­tion 51 of the Labour Code.

It should be noted that the DDPR not only re­solves dis­putes but has a man­date to pre­vent dis­putes. In achiev­ing this man­date, it holds sen­si­ti­sa­tion work­shops and train­ing ses­sions through its In­dus­trial Ad­vi­sory and Pro­mo­tion Unit (IPAPU).

In con­clu­sion, It is there­fore the in­ten­tion of the gov­ern­ment to strengthen these in­sti­tu­tions to pro­vide speedy res­o­lu­tions and ad­ju­di­ca­tion of trade dis­pute by en­sur­ing that dis­pute res­o­lu­tion mech­a­nism sys­tem is in­de­pen­dent of the Gov­ern­ment, Po­lit­i­cal Par­ties, Em­ploy­ers Or­gan­i­sa­tions and Trade Unions and pro­vide fair, ef­fec­tive, less for­mal, af­ford­able and speedy dis­pute pre­ven­tion and res­o­lu­tion.

This ar­ti­cle has been writ­ten by the Min­istry of Labour and Em­ploy­ment. For more in­for­ma­tion, do not hes­i­tate to con­tact us here: Tel: 22322565/22316255 Cell: 57905626

You can also find us on our Min­istry’s web­site: OR on our Face­book page (Min­istry of Labour and Em­ploy­ment Le­sotho)

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