Is the Labour Court to blame for de­lays?

Chronicle (Zimbabwe) - - Business - Labour Col­umn

THIS is the sec­ond part of a three parts se­ries ar­ti­cle that ex­plores why there are de­lays in con­clud­ing Labour Cases at the Labour Court, more specif­i­cally it looks at pro­vi­sions of sec­tion 93(5) and re­lated chal­lenges and brings up le­gal ar­gu­ments around these con­flict­ing pro­vi­sions of the Labour Act.

Sec­tion 93(5)(C) go against pro­vi­sions of sec­tion 98(5)(b) which read ‘‘ the labour of­fi­cer, af­ter con­sult­ing any labour of­fi­cer who is se­nior to him and to whom he is re­spon­si­ble in the area in which he at­tempted to con­cil­i­ate the dis­pute; as the case may be, shall ap­point as an ar­bi­tra­tor a per­son whose name ap­pears on a list re­ferred to in sub­sec­tion (6):

Pro­vided that the labour of­fi­cer who at­tempted to con cil­i­ate the dis­pute which is re­ferred to ar­bi­tra­tion shall not be ap­pointed as the ar­bi­tra­tor in that dis­pute.”

In my read­ing of the law, the sep­a­ra­tion of roles of con­cil­ia­tor and ar­bi­tra­tor is clear.

Yes, one might ar­gue that in terms of sec­tion 93(5)(C) one is not ar­bi­trat­ing but ad­ju­di­cat­ing, the prob­lem with that ar­gu­ment is that if we go to the spirit of the leg­is­la­tion and the in­ten­tion of Par­lia­ment, the two are not dif­fer­ent as they are gov­erned by the same prin­ci­ples in terms of pro­ce­dure and right to be heard.

We find guid­ance in the mat­ter Ta­manikwa and Oth­ers vs Zim­babwe Man­power De­vel­op­ment Fund SC33/13 where the Supreme Court said “It is a well es­tab­lished canon of con­struc­tion that courts should endeavour to rec­on­cile prima fa­cie con­flict­ing statutes as well as ap­par­ently con­flict­ing pro­vi­sions in the same statute.

“Courts there­fore do not read­ily come to the con­clu­sion that there is a con­flict and by us­ing all means at their dis­posal they at­tempt to ef­fect a rec­on­cil­i­a­tion.

“It is also an es­tab­lished canon of con­struc­tion that dif­fer­ent parts of the same statute should, if pos­si­ble, be con­strued so as to avoid a con­flict be­tween them.

“See Amal­ga­mated Pack­ag­ing In­dus­tries Ltd v Hutt & Anor 1975 (4) SA 943 at 949H.

“Ac­cord­ingly, where there are two sec­tions in an Act which seem to clash but which can be in­ter­preted so as to give full force and ef­fect to each, then such an in­ter­pre­ta­tion is to be pre­ferred as op­posed to an in­ter­pre­ta­tion that will partly de­stroy the ef­fect of one of them.

“It is also an ele­men­tary prin­ci­ple of con­struc­tion that the Leg­is­la­ture will not be pre­sumed to take away any ac­quired rights.

“The in­ten­tion to do so must be ex­pressed or very clearly im­plied from the lan­guage of the statute. In Prin­ci­pal Im­mi­gra­tion Of­fi­cer v Bhula 1931 AD 323 WES­SELS JA stated:[5] <file:///C:sers\Takudzwa\ Doc­u­ments\ZIMLII\2014\2013%20SC%20 JUDG­MENTS\33-13.docx>

“It would be ex­tremely dif­fi­cult in such a case to say that Par­lia­ment has by im­pli­ca­tion in a later sec­tion mod­i­fied rights which in an ear­lier sec­tion it safe­guarded ex­plic­itly.

“The im­plied in­ten­tion of Par­lia­ment must be so clear as to leave no doubt what­ever in the mind of the Court. The Leg­is­la­ture is pre­sumed to be con­sis­tent with it­self”.

In the present case the lat­ter sec­tion 93(5) in not ca­pa­ble of be­ing rec­on­ciled with the ear­lier pro­vi­sions of sec­tion 93(5).

This ar­gu­ment is the one that per­suades many labour con­sul­tants to ar­gue that the Labour Court should have long told Labour Of­fi­cers and Des­ig­nated Agents that the lat­ter pro­vi­sions of sec­tion 93(5) are ex­punged and thus they must stick to the orig­i­nal pro­vi­sions.

Moreso, given the fact that the lat­ter pro­vi­sions take away ac­quired rights of a fair hear­ing and that was not the in­ten­tion of the leg­is­la­ture.

At law, ac­quired rights of cit­i­zens can­not be taken away by lat­ter amend­ments.

Fur­ther, it is clear that the lat­ter sec­tion 93(5) of the Labour Act sits in con­flict with pro­vi­sions of 98(5)(b) which reads ‘the labour of­fi­cer, af­ter con­sult­ing any labour of­fi­cer who is se­nior to him ad to whom he is re­spon­si­ble in the area in which he at­tempted to con­cil­i­ate the dis­pute; as the case may be, shall ap­point an ar­bi­tra­tor a per­son whose name ap­pears on a list re­ferred to in sub­sec­tion (6).

Pro­vided that the labour of­fi­cer who at­tempted to con­cil­i­ate the dis­pute which is re­ferred to ar­bi­tra­tion shall not be ap­pointed as the ar­bi­tra­tor in that dis­pute (my em­pha­sis).

This sec­tion of the Act is also not ca­pa­ble of be­ing rec­on­ciled with the lat­ter sec­tion 93(5) which em­pow­ers the labour of­fi­cer and des­ig­nated agent who con­cil­i­ated to also ad­ju­di­cate a thing that prej­u­dices one party given the fact that at con­cil­i­a­tion the ad­ju­di­ca­tor will have ex­pressed an opin­ion, for rea­sons given the ear­lier sec­tion 93(5) should pre­vail over the lat­ter sec­tion 93(5) mean­ing that the lat­ter should be ex­punged.

Had the Labour Court read the law as I read it, we would not be in the prob­lems we are in.

That is also the think­ing of many labour prac­ti­tion­ers. We might all be wrong and stand to be cor­rected.

It is set­tled prac­tice in in­ter­pre­ta­tion of statutes that where statutes are un­clear, vague, or am­bigu­ous the lit­eral rule of in­ter­pre­ta­tion has to be aban­doned and the rule of pur­po­sive in­ter­pre­ta­tion is re­sorted to as is in the present case.

Dr K.R Chan­drate in his pa­per “Es­sen­tial Rules of In­ter­pre­ta­tion of statutes for com­pany sec­re­taries” wrote Har­mo­nius in­ter­pre­ta­tion of two con­flict­ing pro­vi­sions in a statute.

“The pro­vi­sions of a statute should be so in­ter­preted as to har­monise with one an­other and the pro­vi­sions of one sec­tion can­not be used to de­feat those of an­other un­less it is im­pos­si­ble to ef­fect rec­on­cil­i­a­tion be­tween them (my em­pha­sis).

“The Court should, when it seeks to as­cer­tain the leg­isla­tive in­tent, con­strue all of the con­stituent parts of the statute to­gether, and seek to as­cer­tain the leg­isla­tive in­ten­tion from the whole Act, con­sid­er­ing ev­ery pro­vi­sion in the light of the gen­eral pur­pose and ob­ject of the Act it­self, and en­deav­our­ing to make ev­ery part ef­fec­tive, har­mo­nious, and sen­si­ble. This means, that the Court should at­tempt to avoid ab­surd con­se­quences in any part of the statute (my em­pha­sis) and refuse to re­gard any word, phrase, clause or sen­tence su­per­flu­ous, un­less such a re­sult in clearly un­avoid­able.

“Har­mo­nious in­ter­pre­ta­tion rule is used when two pro­vi­sions on the same sub­ject are in con­flict and can­not be rec­on­ciled with each other on plain read­ing.

“The endeavour in such a sit­u­a­tion is to give ef­fect to both and not ren­der ei­ther re­dun­dant or use­less or a dead let­ter.

“So, if there ap­pears in­con­sis­tency be­tween two sec­tions of the same Act, the prin­ci­ple of har­mo­nious in­ter­pre­ta­tion should be ap­plied to avoid a head-on-clash; it should not be as­sumed that what Par­lia­ment has given with one hand, it took away with the other”.

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

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