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Davies Ndumiso Sibanda, Labour Matters
WHERE the labour officer or designated agent makes a ruling against the employee, there is no requirement to have the labour officer’s ruling confirmed by the Labour Court.

This position was confirmed by the Labour Court in the matter Muchovo, N Matenda and 22 others vs Steelmakers Zimbabwe Private Limited.

The merits of the case are not important but the fact is that when the designated agent took his ruling for confirmation by the Labour Court, a point in limine or legal preliminary issue arose, leaving the Judge to deal with it first. The designated agent had dismissed the claim by workers and as such the legal preliminary was that, where the designated agent rules against the claim by workers there was no legal requirement to have the ruling registered. The respondent argued that in terms of section 93 (5a)(b) of the Labour Act Chapter 28:01, the registration of ruling is only applicable where the ruling is in favour of the employee.

Section (5a) and (b) read as follows “A labour officer who makes a ruling and order in terms of subsection (5) (c) shall as soon as practicable 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, . . . to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application”.

The provision, the Judge ruled that provisions related to an occasion where there is a ruling against the employer and he said that “Subsection (5) (c) (ii) relates to a resolution that “(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 party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of monies, 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 subsection (5a) and (5b) shall apply.

The Judge went further and said, “The legislature seemed to want to facilitate a quicker and cheaper method of enabling the employee to enjoy his/her victory as it were. It is not concerned with a situation where the claim is dismissed.

This judgment was not appealed, I am advised, and in my reading of the Labour Act Chapter 28:01 the Judge merely stated what the Act says.

The implications of this judgment are many, one of them is that where the labour officer rules against employees, they would just have to walk away and accept their fate or apply to the Labour Court for a review, the labour officer or designated agent’s decision.

This approach is not yet very clear as many designated agents and labour officers have conflicting views on the way forward after the labour officer has ruled against employees.  As a best practice issue, the answer lies in the organisations having their own in-house codes of conduct, which avoid the referral of matters to labour officers or designated agents.

The honest truth is that organisations that do not have codes of conduct up to this day cannot blame anyone when faced with such challenges given the fact that the right of employers and workers to craft and register in-house codes of conduct was given in 1990.

In conclusion, workers and employers need to observe the law as it stands and negotiate and register in-house codes of conduct so as to avoid involvement of labour officers and designated agents who end up taking matters through a complex and expensive route.

Davies Ndumiso Sibanda can be contacted on:
Email: [email protected]