Is the Labour Court to blame for de­lays? Part 1

Chronicle (Zimbabwe) - - Business - Labour Mat­ters Davis Ndu­miso Sibanda

WITH cases pil­ing up at the Labour Court due to lack of clar­ity of the law on what that court should do, many labour con­sul­tants ar­gue that the Labour Court could be ask­ing for prob­lems by de­lib­er­ately avoid­ing to read the law cor­rectly, while others ar­gue that lit­i­gants have not pre­sented per­ti­nent ar­gu­ments to as­sist the court in­ter­pret the am­bigu­ous pro­vi­sions of the Amend­ment Labour Act num­ber 5 of 2015 of sec­tion 93(5), which I shall re­fer to as the lat­ter pro­vi­sions in this ar­ti­cle.

The ar­gu­ment that Labour Court judges are afraid of “get­ting out of the crowd” is gath­er­ing mo­men­tum as labour con­sul­tants view the ef­forts be­ing made by the court to “sani­tise” the amended Act as ir­reg­u­lar given that the busi­ness of sani­tis­ing leg­is­la­tion rests with Par­lia­ment and the Labour Court’s busi­ness is to read the law and not im­port High Court rules to the Labour Court or craft reg­u­la­tions to “sani­tise” de­fects of sec­tion 93 (5) of the Labour Act.

While some have ar­gued that the Labour Court is within its le­gal rights to “sani­tise” de­fec­tive leg­is­la­tion or to amend rules to talk to amend­ments, the big de­bate re­lates to what is the cor­rect read­ing of the law.

My read­ing of the law re­lat­ing to the present chal­lenges of hav­ing two live Sec­tion 93(5) is that the pro­vi­sions of the Labour Act Amend­ment num­ber 5 of 2015 present a le­gal prob­lem as to which one is ap­pli­ca­ble.

The orig­i­nal pro­vi­sions read: “(5) After a labour of­fi­cer has is­sued a cer­tifi­cate of no set­tle­ment, the labour of­fi­cer, upon con­sult­ing any labour of­fi­cer who is se­nior to him and to whom he is re­spon­si­ble in the area in which he at­tempted to set­tle the dis­pute or un­fair labour prac­tice —

(a) shall re­fer the dis­pute to com­pul­sory ar­bi­tra­tion if the dis­pute is a dis­pute of in­ter­est and the par­ties are en­gaged in an essen­tial ser­vice; or

(b) may, with the agree­ment of the par­ties, re­fer the dis­pute or un­fair labour prac­tice to com­pul­sory ar­bi­tra­tion; or

(c) may re­fer the dis­pute or un­fair labour prac­tice to com­pul­sory ar­bi­tra­tion if the dis­pute or un­fair labour prac­tice is a dis­pute of right; and the pro­vi­sions of sec­tion ninety-eight shall ap­ply to such ref­er­ence to com­pul­sory ar­bi­tra­tion.”

And the lat­ter pro­vi­sions read: “(5) After a labour of­fi­cer has is­sued a cer­tifi­cate of no set­tle­ment, the labour of­fi­cer, upon con­sult­ing any labour of­fi­cer who is se­nior to him or her and to whom he or she is re­spon­si­ble in the area in which he or she at­tempted to set­tle the dis­pute or un­fair labour prac­tice -

(a) shall re­fer the dis­pute to com­pul­sory ar­bi­tra­tion if the dis­pute is a dis­pute of in­ter­est and the par­ties are en­gaged in an essen­tial ser­vice, and the pro­vi­sions of sec­tion 98 shall ap­ply to such ref­er­ence to com­pul­sory ar­bi­tra­tion; or

(b) may, with the agree­ment of the par­ties, re­fer the dis­pute or un­fair labour prac­tice to vol­un­tary ar­bi­tra­tion if the dis­pute is a dis­pute of in­ter­est; or

(c) may if the dis­pute or un­fair labour prac­tice is a dis­pute of right; make a rul­ing that, upon a find­ing on a bal­ance of prob­a­bil­i­ties that:

(i) the em­ployer or other per­son is guilty of an un­fair labour prac­tice; or

(ii) the dis­pute of right or un­fair labour prac­tice must be re­solved against any em­ployer or other per­son in a spe­cific man­ner by an or­der-di­rect­ing the em­ployer or other party con­cerned to cease or rec­tify the in­fringe­ment or threat­ened in­fringe­ment, as the case may be, in­clud­ing the pay­ment of mon­eys, where ap­pro­pri­ate:

for dam­ages for any loss or prospec­tive loss caused ei­ther di­rectly or in­di­rectly, as a re­sult of the in­fringe­ment or threat­ened in­fringe­ment, as the case may be: where­upon the pro­vi­sions of sub­sec­tions (5a) and (5b) shall ap­ply.

(5a) A labour of­fi­cer who makes a rul­ing and or­der in terms of sub­sec­tion (5)(c) shall as soon as prac­ti­ca­ble(a) make an af­fi­davit to that ef­fect in­cor­po­rat­ing, re­fer­ring to or an­nex­ing thereto any ev­i­dence upon which he or she makes the draft rul­ing and or­der; and

(b) lodge, on due no­tice to the em­ployer or other per­son against whom the rul­ing and or­der is made (“the re­spon­dent”), an ap­pli­ca­tion to the Labour Court, to­gether with the af­fi­davit and a claim for the costs of the ap­pli­ca­tion (which shall not ex­ceed such amount as may be pre­scribed), for an or­der di­rect­ing the re­spon­dent by a cer­tain day (the “resti­tu­tion day”) not be­ing ear­lier than thirty days from the date that the ap­pli­ca­tion is set down to for hear­ing (the “re­turn day” of the ap­pli­ca­tion) to do or pay what the labour of­fi­cer or­dered un­der sub­sec­tion (5) (c)(ii) and to pay the costs of the ap­pli­ca­tion.

(5b) If, on the re­turn day of the ap­pli­ca­tion, the re­spon­dent makes no ap­pear­ance or, after a hear­ing, the Labour Court grants the ap­pli­ca­tion for the or­der with or without amend­ment, the labour of­fi­cer con­cerned shall, if the re­spon­dent does not com­ply fully or at all with the or­der by the resti­tu­tion day, sub­mit the or­der for reg­is­tra­tion to which­ever court would have had ju­ris­dic­tion to make such an or­der had the mat­ter been de­ter­mined by it, and there­upon the or­der shall have ef­fect, for pur­poses of en­force­ment, of a civil judg­ment of the ap­pro­pri­ate court.”

There is ob­vi­ous con­flict between the two pro­vi­sions and it is this con­flict that I will ad­dress to­day and in sub­se­quent ar­ti­cles.

The start­ing point where two pro­vi­sions of leg­is­la­tion are alive and do not agree, the lat­ter amend­ment su­per­seded the ear­lier amend­ment which would mean that the Labour Act Amend­ment num­ber 5 of 2015 sec­tion 93(5) su­per­sedes the ear­lier pro­vi­sions.

How­ever, in­ter­pre­ta­tion of statutes prin­ci­ples pro­vide a rider to this prin­ci­ple and that is, the lat­ter pro­vi­sions only su­per­sedes the ear­lier pro­vi­sions only as far as they are rea­son­able. It is the ar­gu­ment of rea­son­able­ness that many con­sul­tants feel has not been ar­gued at Labour Court level and if ar­gued the ar­gu­ment has been ro­bust enough.

This is so be­cause the lat­ter pro­vi­sions of sec­tion 93(5) of the Labour Act are in my read­ing of the law un­rea­son­able as be­fore the per­son who con­cil­i­ates with par­ties open their armpits and there­after the same per­son goes ahead and make a rul­ing in terms of sec­tion 93(5) (C) and there­after the same per­son de­scends to the arena and ap­plies to the Labour Court for the con­fir­ma­tion of his or­der.

This clearly goes against prin­ci­ples of nat­u­ral jus­tice and makes the process un­rea­son­able thus mak­ing it im­pos­si­ble to have the lat­ter pro­vi­sions of sec­tion 93(5) ap­pli­ca­ble. To be con­tin­ued

Davies Ndu­miso Sibanda can be con­tacted on: email: strat­waysmail@ya­hoo.com Or cell No: 0772 375 235

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