Simbarashe Gobvu

The promulgation of Labour Amendment Act Number 5 of 2015 brought a significant change to section 93 of the Labour Act which dealt with labour dispute resolution. The new provision has taken away arbitration on disputes of rights and gave labour officers more powers to make rulings that are subjected to confirmation by the Labour Court. The alternative dispute resolution system now requires court processes that demand legal guidance making it more of litigation than an informal dispute resolution mechanism. Most employees and employers are in the dark with regard to the current dispute resolution system as amended by Amendment Number 5 of 2015. This article serves to simplify the new labour dispute resolution process in terms of section 93 of the Labour Act. The process is explained in five stages discussed hereunder.

1. Conciliation

At this stage, the Labour Officer attempts to settle the matter through conciliation. Parties are given an opportunity to solve their dispute with the guidance of the Labour Officer. The role of a Labour Officer at this stage is to facilitate the dialogue between the parties. The Labour Officer may, if it is necessary hear the parties separately as a way of attempting to secure an agreement between the parties. Parties are allowed to bring their representation at this stage and conciliation is allowed to go up to 30 days. If parties wish to proceed with conciliation after the expiration of 30 days they are allowed to extent the conciliation up to 90 days. The time frame is in terms of Statutory Instrument 217, Labour (Settlement of Disputes) Regulations, 2003. Section 3(6) of the aforesaid regulations provides that a Labour Officer to whom a dispute or unfair labour practice has been referred, or to his attention it has come, shall not spend more than ninety days before attempting to settle the dispute or unfair labour practice. If the parties agree to settle at this stage the Labour Officer shall issue a certificate of settlement and the dispute shall be considered resolved. The certificate of settlement must clearly show the terms of agreement and restitution day. The Labour Officer shall append his signature as well as the parties on the certificate of settlement. The certificate of settlement is issued in triplicate, one for the Labour Officer, one for the employee party and the other one for the employer party. In the event that the parties fail to agree the Labour Officer shall issue a certificate of no settlement and proceed to the next stage of the ruling.

2. Ruling

Section 93 subsection 5(c) provides that 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 –

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-

A. 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:

B.    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.

In an attempt to make a ruling the Labour Officer invite the parties for ruling proceedings and the parties agree on the terms of reference for the ruling. The parties may decide to present their submissions in writing or may make their submissions verbally or both before the Labour Officer. For the purpose of resolving disputes expeditiously, the parties have to agree on the timeframe for filing of submissions. The Labour Officer will after reading documents and hearing both parties proceed to make a ruling on a balance of probability.

3. Application for confirmation of ruling at the Labour Court

After making a ruling the Labour Officer shall serve the ruling to the parties in dispute and make an application for confirmation of ruling.

Section 93 (5a) provides that 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.

It is key to note that the application should be accompanied by an affidavit, the draft ruling, claim of costs and draft order. After preparing the application the applicant (Labour Officer) shall pay the sheriff costs and file the application at the Labour Court which shall serve the parties with relevant papers and set down the date for confirmation. The parties to the dispute shall comply with the requirements of the court as provided by Statutory Instrument 150 of 2017, Labour Court rules.

 4. Confirmation at the Labour Court.

The matter will be heard at the Labour Court and the court may confirm with or without amendments the ruling of the Labour Officer. The court may also substitute the order with its own order as it sees it fit. The labour officer becomes the applicant while the parties to the dispute become the respondents. The complainant will have to apply for jointer to be accepted as an interested party. Parties are allowed to appear in person or be represented by legal practitioners and or trade unionists in the case of an employee. The court may issue an order soon after hearing the matter or may reserve judgement to another date.

5. Registration of an order

In terms of section 93(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 an effect, for purposes of enforcement, of a civil judgment of the appropriate court.

 It is prudent to note that if the respondent fails to comply with the order, the labour officer will have to submit an order for registration at the appropriate court depending on the amount concerned. The labour officer will continue to control the process though not an interested party.

The current system has given labour officers more power to control the dispute resolution system. The fact that the ruling authority becomes an applicant at the labour court has brought more confusion and constitutional issues which have triggered the need for amendment of the Labour Act. A new labour bill has already been approved by the cabinet and there is a green light to do away with the current cumbersome labour dispute resolution system.-

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

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