By Simbarashe Gobvu
In terms of section 2A (f) of the Labour Act Chapter 28.01, the main purpose of the Act is to advocate for social justice and democracy in the workplace by securing the just, effective and expeditious resolution of disputes and unfair labour practices. To achieve this, an alternative dispute resolution mechanism has been put in place through legal provisions in the Act and other pieces of legislation from National Employment Councils. Alternative Dispute Resolution is defined as a range of procedures that serves as an alternative to litigation through the courts for resolution of disputes (Mucheche, 2018).
The historic Supreme Court judgement in the case of Don Nyamande and another Versus Zuva Petroleum SC 43/15 which was handed down on the 17th of July 2015 led to massive job losses which subsequently led to a rushed Labour Amendment Act Number 5 of 2015. The Amendment was promulgated on the 26th of August 2015, only 5 weeks after the judgement date. The legislature intended to put a stop gate on termination of employment on notice as well as attempting to compensate those who had lost their jobs.
However, the effort to address the effects of the Zuva judgement brought more changes in the labour legislation in Zimbabwe. Apart from dealing with job cuts, the amendment reviewed Section 93 of the Labour Act which dealt with the powers of the labour officers. The new provision led to a paradigm shift from the traditional conciliation- arbitration to conciliation – ruling. The new ADR involved Labour Court processes which require knowledge of the court rules and engagement of legal practitioners. Section 93 of the amended Labour Act empowered the labour officers to conciliate, make rulings and apply for confirmation of their findings at the Labour Court. The informality of the ADR system was compromised by the new amendment which demands formal court procedures. Many potential complainants no longer afford to file their cases because the new dispute resolution system now involve court procedures which require legal minds.
Before the amendment, labour matters were brought before a labour officer who would attempt to conciliate on the matter within thirty days and the matter would be disposed of by issuing a certificate of settlement where parties agreed to resolve their dispute. Where parties reach a deadlock the labour officer would issue a certificate of no settlement and refer the matter for arbitration. Parties would appear before the arbitrator who would dispose of the matter by issuing an enforceable award.
In terms of Section 93 of the Labour Act as amended by Labour Amendment Act Number 5 of 2015, labour officers were empowered to make rulings instead of referring matters to arbitration. The new Section 93(5) (c) provides that after a labour officer has issued a certificate of no settlement and upon consultation of 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, may if the dispute or unfair labour practice is a dispute of right; make a ruling upon a finding on a balance of probabilities.
The new law provides that after making a ruling, the labour officer shall file an application for confirmation of the ruling at the Labour Court. It is also noted that the same labour officer who adjudicate at conciliation is the same labour officer who would proceed to make a ruling. It is important to note that a ruling by the labour officer does not bind parties until it is confirmed by the Labour Court.
After applying to the labour court for confirmation, the labour officer becomes the applicant and the parties to the dispute become the defendants. The scenario in which the adjudicator become a litigant brought a lot of questions on the constitutionality of the new labour dispute resolution system. The parties would be required to file their submissions before the court in terms of Statutory Instrument 150 of 2017 (Labour Court Rules). The interested part would also be required to pay a substantial amount of the sheriff costs for the matter to be brought before the Labour Court. Application for confirmation by the Labour Officer would only be accepted if the ruling was in favour of the complainant and there would be no recourse if the outcome was vice versa. In the case of Drum City v Garudzo SC937/17, the Supreme Court ruled that application for confirmation would be done only if the ruling was in favour of the applicant. However, the provision of Section 93 of the new amendment does not give winning part any room to seek for variation of the ruling if the outcome was not satisfactory. The time frame taken from the date the matter is brought before the labour officer to the date of confirmation by the Labour Court is not prescribed in the Act. The other area of concern is when the party against whom the ruling is confirmed does not comply with the Labour Court order. In terms of Section 93(5b), it is again the labour officer who submits the order for registration to either the High Court or the Magistrate’s Court depending on the terms of the order. At registration stage the labour officer cease to be an umpire in the dispute and may choose not to be party of the dispute considering hassles that come with filing applications at the High Court.
While the old conciliation–arbitration approach was user friendly and very informal, the new ruling–Labour Court approach appeared to be too legal, expensive and complex for the disputants who can not afford to address their disputes without involvement of legal experts. https://masvingomirror.com
Opinions expressed herein are solely those of the author and must not be taken as legal advice. Simbarashe Gobvu is an experienced Labour Practitioner and an Independent Arbitrator who write in his own capacity. He can be contacted at [email protected]/ Phone 0773215904 or 0713008767