Rul­ing by labour of­fi­cials can be avoided

Chronicle (Zimbabwe) - - Business - Labour Col­umn Davies Du­miso Sibanda

MANY labour cases re­main un­con­cluded for a long time be­cause par­ties to dis­putes al­low labour of­fi­cers and des­ig­nated agents to make rul­ing in terms of Amend­ment No.5 Sec­tion 93(5) of the Labour Act Chap­ter 28:01, yet the same mat­ters can be pro­cessed quickly through ar­bi­tra­tion.

Sec­tion 93(1) of the Labour Act Chap­ter 28:01 gives par­ties to a labour dis­pute the right to have the dis­pute dis­posed of through ar­bi­tra­tion if par­ties agree, and to have the labour of­fi­cer or des­ig­nated agent make a rul­ing where par­ties do not make the choice or re­ject ar­bi­tra­tion op­tion.

The ma­jor prob­lem is that most rep­re­sen­ta­tives of par­ties do not tell their clients the truth as there is fi­nan­cial gain for them stay­ing long on the case while charg­ing their re­spec­tive clients fees.

This is busi­ness pru­dence but morally evil as the par­ties con­tinue to be milked for a long time with no end to the cases.

Fur­ther af­ter the labour of­fi­cer or des­ig­nated agent has made a rul­ing and ap­proached the Labour Court, the whole process be­comes dodgy as the leg­is­la­tion used by the labour of­fi­cer or des­ig­nated agent to ar­rive at the Labour Court is ques­tion­able.

This leaves room for le­gal ar­gu­ments that can eas­ily turn con­sti­tu­tional or lead to the case be­ing thrown out. Most of the ar­gu­ments can be be­yond com­pre­hen­sion of the labour of­fi­cer or des­ig­nated agent as they will be on le­gal tech­ni­cal­i­ties.

It is rec­om­mended that where one wants the case to be con­cluded timeously, he or she should at con­cil­i­a­tion, if no agree­ment is reached ask the con­cil­ia­tor to re­fer the mat­ter for ar­bi­tra­tion. In fact, it would be un­wise for any of the par­ties to ob­ject to ar­bi­tra­tion in terms of Sec­tion 93(1) as ar­bi­tra­tion al­lows for two im­por­tant things to hap­pen.

That is, each party re­mains in con­trol of its case and re­lated ar­gu­ments thus al­low­ing for a clean ap­peal to the Labour Court which can eas­ily be dis­posed of with­out be­ing clouded by le­gal tech­ni­cal­i­ties.

Se­condly, there is speedy res­o­lu­tion of the dis­pute as each party is due to easy at ar­bi­tra­tion process.

There are no com­plex pro­cesses in­volv­ing the labour of­fi­cer or des­ig­nated agent mak­ing a rul­ing, hav­ing a first and sec­ond re­spon­dent and there are hardly any le­gal ar­gu­ments be­fore the Labour Court re­lated to the le­gal­ity of the whole process.

Ad­vice to work­ers and em­ploy­ers is that, be­fore they ap­pear be­fore the labour of­fi­cer or des­ig­nated agent of the NEC, they must first seek le­gal ad­vice and prefer­ably get rep­re­sen­ta­tion from com­pe­tent in­di­vid­u­als.

Not every labour con­sul­tant, lawyer or trade union­ist is com­pe­tent in labour law thus the need for one to first of all es­tab­lish who is ca­pa­ble of giv­ing pro­fes­sional ad­vice.

For cases that are al­ready be­fore the Labour Court or are await­ing rul­ings by labour of­fi­cers and des­ig­nated agents, there is a win­dow to talk to the other party and agree to have the mat­ter with­drawn and pro­gressed through ar­bi­tra­tion in terms of Sec­tion 93(1).

There has been mis­in­for­ma­tion of lit­i­gants by rep­re­sen­ta­tives who se­lec­tively read the Labour Act Chap­ter 28:01 with­out ap­ply­ing the in­ter­pre­ta­tion of statute prin­ci­ples where par­ties have been told they can­not take dis­putes of right to ar­bi­tra­tion, which re­stric­tion does not ap­ply to Sec­tion 93(1).

If the leg­is­la­ture wanted that re­stric­tion to be there, it would have been writ­ten in the Act. In con­clu­sion those who want their cases to be con­cluded quickly in my opin­ion are bet­ter off go­ing the ar­bi­tra­tion route as it has a bet­ter chance of giv­ing qual­ity and ob­jec­tive con­clu­sion of the case with­out de­lay.

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

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