By Simbarashe Gobvu
More often than not, employees find themselves in wrong courts because of lack of legal guidance. In other circumstances, time of appeal would lapse while employees waste time approaching the wrong courts and application for condonation for late appeal may be more complicated. As a results of this misdirection disposal of labour disputes is delayed. The common adage that justice delayed is justice denied becomes a common setback in resolution of labour disputes.
The issue of jurisdiction is one of the frequently raised preliminary issues when labour matters are brought before the adjudicators. Labour officers are empowered to adjudicate on labour matters in terms of section 93 of the Labour Act Chapter 28.01. In discharging their duties they are also guided by Labour (Settlement of Disputes) Regulations, 2003 Statutory Instrument 217 of 2003. While labour officers are entitled to adjudicate on labour disputes by the aforementioned section they do not have jurisdiction to entertain labour disputes where there is a National Employment Council for the industry in which the dispute emanated.
Section 63(3b) of the Labour Act provides that, where a designated agent is authorised to redress any dispute or unfair labour practice in terms of subsection (3a), no labour officer shall have jurisdiction in the matter. This provision takes away jurisdiction from labour officers where there is a National Employment Council for the undertaking in which the dispute arise. The powers of the labour officers on section 93 apply mutatis mutandis to designated agents.
Labour officers are left with managerial employees who do not fall under the NEC and any other employees who do not fall under National employment councils like domestic workers. It must be noted that employers are bound by the collective bargaining agreements of NECs for the sectors they fall under whether they are part of the agreement or otherwise. In most cases employees would approach labour officers instead of designated agents and their cases usually suffer complications where a point in limine of jurisdiction is raised during the proceedings. Labour officers must refer the complainants to the appropriate NEC to avoid unnecessary delays in resolving the disputes.
Other than powers vested in them on section 93 of the Act, Labour officers are also empowered to hear matters to do with code of conduct in terms of section 101(6). The section provides that, if a matter is not determined within thirty days of the date of the notification referred to in paragraph (e) of subsection (3), the employee or employer concerned may refer such matter to a labour officer, who may then determine or otherwise dispose of the matter in accordance with section ninety-three. Paragraph (e) notifies any person who is alleged to have breached the employment code that proceedings are to be commenced against him in respect of the alleged breach. Once the alleged offender of misconduct is notified the matter should be determined in 30 days and where the matter is not determined either part can approach the labour officer who would dispose the matter by making a determination or deal with the matter in terms of section 93.
The other circumstances where labour officers have jurisdiction is when an employee appeal against a decision made in terms of National Employment Code of Conduct which is referred to as Statutory Instrument 15 of 2006. In term of section 8(6) of the National Employment Code of Conduct, a person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council designated agent, as the case may be, within seven working days of receipt of such decision. However there is a judicial president which clarified that SI 15 is altravires to the provisions of section 101 and 92D of the Labour Act and its applicability is mired in controversy.
Labour officers are also empowered to determine on the cases where employment council refuses to approve a code made by works council at company level. section 101(1c) provides that where an employment council refuses to approve a code made by a works council in terms of subsection (1a) or (1b), the works council may refer the matter to a labour officer, and the determination of the labour officer on the matter shall be final unless the parties agree to refer it to voluntary arbitration.
Employees must be guided accordingly so that they don’t delay labour dispute resolution by approaching the wrong adjudicators with their labour matters. It must be also noted that no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings once they have started. A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court. 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