Davies Ndumiso Sibanda
ONE of the most difficult things is to appear before an arbitrator or labour officer who uses bullying or threatening approach to the parties to a hearing especially when one makes submissions that do not sit well with the arbitrator or labour officer’s understanding of the law.
The age old saying, “As obnoxious as a Judge” is not confined to use by lawyers where they refer to unpalatable remarks by judges. Not long ago, I appeared before an arbitrator who I felt literally turned the hearing into a terror chamber threatening to call security to remove me from his office. For the first time in my more than 24 year labour consulting career, I felt physically insecure.
My crime was that when he said as a labour consultant I should not appear before him. I made submissions to the contrary citing the law. My expectation was that he was going to deal with my preliminary submission but he got so angry telling me that I should not argue with him as his position was final. I then requested he puts his ruling in writing so that I could appeal. At that point he became agitated and gave me a lecture on his powers and threatened to call security to remove me. All this was in front of my client who tried to protest that he could continue without representation. On realising that things were turning ugly, I advised my client to ask for a certificate of no settlement and pray that justice will prevail when the playing field will be levelled before the Labour Court Judge. As we left, I simply said not only judges make obnoxious remarks.
I am not alone, on talking to a number of labour consultants, trade unionists and interesting lawyers, there are many who have experienced what they perceive as abuse of power by arbitrators and labour officers when it comes to dispute resolution.
I shall not dwell on whether I was right or wrong as the matter is subjudice. However, those who want answers urgently, there are many decided cases on the subject by the Labour Court. I will, however, do an independent article on the law and the right to representation by labour consultants before conciliators, arbitrators and labour officers next week.
When one is confronted with intimidation or bullying at arbitration, there is no need for one to lose his marbles. The answer is to remain calm and as polite as possible state clearly that you do not agree with the arbitrator’s position and allow the matter to progress to the next level where the issues in dispute will form preliminary issues.
For matters of law to be dealt with as preliminary material matters, there must be evidence that the conduct or actions of the arbitrator were unlawful or cause prejudice. On appeal, one has to focus on the conduct of the arbitrator and pray the court rules that it was unlawful or caused prejudice. One of the key things is to pray that either the Higher Court disposes of the matter or it’s remitted to another arbitrator to be heard afresh. Where one has engaged lawyers it is advisable to also pray for the costs to be awarded but one must demonstrate that the arbitrator was reckless. Another alternative is to approach the Labour Court directly soon after the arbitrator’s actions and apply for a review of the arbitrator’s decision. Usually if successful, costs are likely to be awarded. Remember to also argue why costs should be awarded. Getting help from a labour lawyer is advised.
In the unfortunate event that security is called in do not resist but comply and leave. However, in the majority of cases security officers who are well trained will refuse to be used to remove a non-violent person arguing they have no role in arbitration proceedings.
The most common areas of irritation for arbitrators is when they make a ruling or statement during a hearing and one of the parties asks for evidence that does not exist. Labour officers in particular at times will drop the name of the registrar as a practice direction yet the law is clear or practice directions, until the ministry comes up with legal codes of good practice not internal directives which are not legal.
I am of the opinion that even the current forms used by Ministry of Labour cannot stand the legal scrutiny as they were crafted outside regulations by the minister. It is pointing out such issues that tend to cause conflict.
To avoid conflict, say little during the hearing but make sure in written submissions brilliant arguments are raised backed by case law.
In conclusion, there are bullies and people who cannot stand being challenged everywhere in life thus arbitrators are no exception meaning that those who appear before them must be smart and not return fire with fire but sit on the law at all times. The good thing about law is that there is always a day when the courts will look at the matter without bias or favour.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235