Davies Dumiso Sibanda
MANY labour cases remain unconcluded for a long time because parties to disputes allow labour officers and designated agents to make ruling in terms of Amendment No.5 Section 93(5) of the Labour Act Chapter 28:01, yet the same matters can be processed quickly through arbitration.
Section 93(1) of the Labour Act Chapter 28:01 gives parties to a labour dispute the right to have the dispute disposed of through arbitration if parties agree, and to have the labour officer or designated agent make a ruling where parties do not make the choice or reject arbitration option.
The major problem is that most representatives of parties do not tell their clients the truth as there is financial gain for them staying long on the case while charging their respective clients fees.
This is business prudence but morally evil as the parties continue to be milked for a long time with no end to the cases.
Further after the labour officer or designated agent has made a ruling and approached the Labour Court, the whole process becomes dodgy as the legislation used by the labour officer or designated agent to arrive at the Labour Court is questionable.
This leaves room for legal arguments that can easily turn constitutional or lead to the case being thrown out. Most of the arguments can be beyond comprehension of the labour officer or designated agent as they will be on legal technicalities.
It is recommended that where one wants the case to be concluded timeously, he or she should at conciliation, if no agreement is reached ask the conciliator to refer the matter for arbitration. In fact, it would be unwise for any of the parties to object to arbitration in terms of Section 93(1) as arbitration allows for two important things to happen.
That is, each party remains in control of its case and related arguments thus allowing for a clean appeal to the Labour Court which can easily be disposed of without being clouded by legal technicalities.
Secondly, there is speedy resolution of the dispute as each party is due to easy at arbitration process.
There are no complex processes involving the labour officer or designated agent making a ruling, having a first and second respondent and there are hardly any legal arguments before the Labour Court related to the legality of the whole process.
Advice to workers and employers is that, before they appear before the labour officer or designated agent of the NEC, they must first seek legal advice and preferably get representation from competent individuals.
Not every labour consultant, lawyer or trade unionist is competent in labour law thus the need for one to first of all establish who is capable of giving professional advice.
For cases that are already before the Labour Court or are awaiting rulings by labour officers and designated agents, there is a window to talk to the other party and agree to have the matter withdrawn and progressed through arbitration in terms of Section 93(1).
There has been misinformation of litigants by representatives who selectively read the Labour Act Chapter 28:01 without applying the interpretation of statute principles where parties have been told they cannot take disputes of right to arbitration, which restriction does not apply to Section 93(1).
If the legislature wanted that restriction to be there, it would have been written in the Act. In conclusion those who want their cases to be concluded quickly in my opinion are better off going the arbitration route as it has a better chance of giving quality and objective conclusion of the case without delay.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cellphone No: 0772 375 235