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Davis Sibanda Labour Matters
MANY labour disputes are better settled out of court than to take the risks time consuming and financially heavy litigation route.
In labour cases, it is not always about winning or losing a case. It is also about finding an amicable separation avenue for the parties which will leave the employer and the worker with fewer bruises and their images having suffered minimal or no damage at all.

In most cases, when a labour dispute begins emotions are high and positions are generally entrenched but as parties calm down, reason turns to prevail, more so after parties have sought legal advice. It is at this stage that parties should consider an out of court settlement as an option and that will not be a sign of weakness or abandonment of a case as negotiations are done without prejudice. Further, it demonstrates business prudence.

Once an employer has charged an employee, there is a need to seek legal advice on prospects of success and possible costs of the legal journey in terms of time and money and other hidden costs such as embarrassment and negative publicity. The picture usually becomes clearer after the employee has responded to the allegations.

On the worker’s side, there is a need to be realistic as at times trust will have collapsed between parties and prospects of being re-engaged even after winning the case will be non-existent. Further, on suspension or dismissal financial capacity to litigate is lost or limited meaning that it could be better to settle than litigate.

It is a painful truth that most employers will shun engaging an individual with a history of litigating as they fear that he might litigate again or influence workers to litigate thus creating a confrontational labour relations environment. This kind of thinking is never expressed in public but many employers share this thinking. The issue is not whether it is legal or not but that it happens.

Some cases become very complex both on substantive and procedural matters requiring that parties engage legal experts at a huge cost over a dispute that does not make such a route cost effective. When this happens, an out of court settlement could be a viable route.

There are also disputes over very small amounts which would otherwise be expensive to take through litigation. It is cheaper for parties to settle e.g. a dispute over $250 is cheaper to settle with parties reaching a compromise than to go for arbitration which will cost not less than $300.

For workers, one of the major risks on losing a case is being ordered to pay the employer’s costs, a thing that could lead to loss of assets and on the employer’s side, company property can be attached to pay these costs resulting in closure of the company or crippling of the business as critical equipment will have been lost.

It is recommended that as a risk management measure, parties try to settle within the shortest possible time to allow each party to move on within the shortest period. As parties negotiate a settlement, there is a need to be realistic as being greedy while one knows his prospects of success at litigation are low or non-existent could lead in the negotiations collapsing and parties going through the painful route of litigation. Many have lived to regret why they rejected attractive out of court settlements offer losing cases.

Further, capacity to litigate is another important factor as labour litigation is a specialised field where experts are few and at times very expensive meaning that an out of court settlement is a better option.

In conclusion, parties need to consider the out of court settlement option objectively as a means of managing dispute resolution related cost.

Davies Ndumiso Sibanda can be contacted on: e-mail: [email protected] Or cell No: 0772 375 235