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Labour Matters Davies Ndumiso Sibanda
The legal complexities and the cost of approaching the two courts have made it impossible for many ordinary workers and small businesses to seek relief from them.
While it is true that the process of due process is open to all citizens, in reality, workers and small businesses cannot afford to get there.
The two courts, as far as labour cases are concerned, have now become the preserve of large organisations well-resourced trade unions and managerial employees who earn decent salaries and a few with the capacity to be self-actors.

The first problem for most workers and small businesses is the cost of approaching the Labour Court and Supreme Court. Many workers earn salaries that make it prudent not to appeal even if they have been unfairly dismissed and have cases that have high prospects of success.

Take the example of Mary who works in a factory and earns $210 a month and is unfairly dismissed in terms of the inhouse Code of Conduct for being away for one day without a reasonable excuse.

The code of conduct expressly says absence for one day attracts a written warning valid for 3 months. Mary appeals internally without success and is told to appeal to the Labour Court if she is not happy. Mary writes a letter which she takes to the Labour Court where she is told to fill in forms LC3, she buys the LC3 forms and approaches a labour consultant who says he can assist if he is paid $400. Mary declines and goes to a lawyer where she is told to pay a deposit of $600. She eventually fills the forms on her own and attaches what she believes are grounds of appeal.

On submitting her papers, Mary is asked whether she is appealing or making an application for review.
Mary says she doesn’t know the difference, she is advised to get a lawyer to assist her and at that point Mary takes her papers, leaves the labour court in tears and abandons her appeal.

The question is how many workers and small businesses struggle with approaching the Labour Court because the cost for doing the right thing is prohibitive and the documentation is complex.

The procedure to be followed both in the Labour Court and Supreme Court requires that one gets a lawyer or a well-trained Human Resources practitioner or trade unionist.

It is cumbersome and expensive requiring that lawyers take a lot of time putting the papers together resulting in a huge cost to the employer or worker.
The question is, are these processes and documentation consistent with the spirit of establishment with the Labour Court.

I am of the view that the processes put the courts beyond the reach of ordinary workers and small businesses.
It must be also noted that the atmosphere of our Labour Court and Supreme Court is intimidating making the courts a very scary place to get to for most ordinary workers and small businesses.

The informality expected of the Labour Court is not visible.
A major question that arises is; Since the Labour Court and Supreme Court are slowly being removed as an option for workers and small businesses with labour cases, what is the alternative?

So much debate has gone on concerning this subject in many countries without getting to a conclusive answer. Some countries have opened Labour Appeal Courts and Labour Courts with strict terms of reference that requires the courts to be as informal and user friendly as possible.

Representation has been related and documentation has been simplified and made user friendly.
Some countries have allowed wider representations in labour hearings to allow for the cutting of litigation costs but this route has also allowed the entry of bogus consultants and lawyers who cheat workers of their hard earned cash.

In conclusion, I believe the Labour Court and Supreme Court will remain beyond the reach of many workers due to the fact that nobody has bothered to study the challenges faced by workers and small businesses who try to access the courts so as to have to relook at the present position and accept that the practitioners of labour law are ordinary workers and ordinary employers and as such the courts must be sensitive and respond accordingly.

That is why labour in many top universities is housed in the business faculty and not law faculty.

Davies Ndumiso Sibanda can be contacted on: email:[email protected] <mailto:[email protected]> Or cell No: 0772 375 235