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Labour Matters Davies Ndumiso Sibanda
The new provisions of section 93(5) (5a) (5b) on dispute resolution are so technical and legalistic that not only labour officers will struggle with them but many workers and employers will not be able to handle them. The new legislation provides where parties do not agree to have the dispute arbitrated, for the labour officer to adjudicate. The first challenge is that a sizeable number of labour officers are not qualified in dispute resolution or labour law, they have learnt the job over time but still fall short where the dispute before them is a legal one.

The amendment requires Labour Officers to craft affidavits and craft orders for submission to the Labour Court.

I can foresee many labour officers on the dock being taken to task over defective affidavits and orders.

Crafting of orders by labour officers on behalf of parties goes against the grain of principles of natural justice. In my reading of the law, it is not proper for a labour officer who presided over a case to place an application for an order before a Judge of the Labour Court on behalf of one of the parties that is before him.

I believe the constitutionality of such orders can be challenged and prospects of success are high. Further, the labour officer who conciliates is the same labour officer who will arbitrate or make a ruling on the matter and refer to the Labour Court.

This presents a problem as usually at conciliation the Labour Officer will give the parties his opinion and for the same labour officer to be expected to fairly rule on the matter later is impossible.

Section 5(C) does not explain the process the Labour Officer will have to go through before making a finding on balance of probabilities that a party is wrong or right.

It seems once a certificate of no settlement is issued, the Labour Officer does not have to call parties for submissions before making a decision but that conciliation submissions will be at the basis of decision making. That approach has its own problems.

Section 5(b) provision on reference of matter to voluntary arbitration lacks clarity on the route to follow thereafter as voluntary arbitration can be in terms of the Arbitration Act meaning that the labour processes route is abandoned at that point as parties head to the High Court in case of a dispute.

There are likely to be problems with matters referred to voluntary arbitration on which law is applicable as on Voluntary Arbitration Ministry of Labour is not involved.

Section 93(C)(ii)(b) provides for payment of damages to employees for loss or prospective loss. This in my view could apply to unfair dismissals.

This clause contradicts section 12C(2) which provides for retrenchment packages for dismissed employees.

This means employers will have to choose the cheaper route between dismissal and terminating on notice and pay retrenchment package.

As things stand, going through the disciplinary process for employers is unnecessary cost in the majority of cases.

Unfortunately it leaves workers with short service exposed and those with long service safe.

In conclusion as one of those citizens who have religiously contributed to the development of our labour laws, it is saddening that at a time like this when we have a much bigger legal capacity we proceed to produce such a defective document.

If anything, as a nation we should accept we messed up and quickly go back to the TNF and sanitise the legislation in the interest of our country. While that happens employers and workers will have to exercise caution in application of the law.

Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell No: 0772 375 235