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Abraham Mpofu

Davies Ndumiso Sibanda, Labour Matters
WITH the introduction of the latest Labour Court Rules (SI 150 of 2017), many ordinary employers and workers have been left wondering whether the Labour Court still serves its purpose that it was established for.

While this is a delicate subject, one has to deal with without diminishing the image of our Labour Court and labour justice system, the truth is that there is increasing noise against how the Labour Court of today operates as opposed to the Labour Court of yesterday.

At the inception of the Labour Court I recall attending a workshop in Kadoma where employers, unions and government were agreed that a Labour Court has to be established to deal purely with labour matters. Parties were agreed that proceedings before this court should be as informal as possible.

I remember in that meeting it was agreed that the ordinary worker and ordinary employer should be able to approach it with simple paperwork and be heard. At inception, the Labour Court was exactly that but it slowly drifted to exclude ordinary employers and workers and became highly legalistic with complex documentation, which even some lawyers struggle with.

The change started with small things like practice directions, which vexed ordinary employers and workers, then came Labour Act Amendments which provided for rulings to be confirmed by the Labour Court and now it is the new Labour Court rules. I have no doubt that even some legally trained people would fail if a test is set on them.

The legal requirements make it impossible for the ordinary employer and worker to approach the Labour Court without expert assistance, which does not come cheap. For example to ask ordinary employers and workers to do an affidavit is asking for too much given the fact that doing an affidavit calls for legal skills. We have read many cases where the judges have questioned how an affidavit is written. In fact I did a brief verbal street survey to check how many people know what an affidavit is and its purpose and out of the first 10 workers and employers, nobody had the correct answer. The question is why then should the court demand things that do not assist those it is supposed to assist.

I recall watching the judges interview and if I am not mistaken a legally trained candidate struggled to distinguish between an appeal and a review and it’s shocking to say the least to have Labour Court rules where ordinary workers and employers will be expected to distinguish between the two if their approach to the Labour Court will succeed.

The Labour Court was not intended to be an expensive court, but the new rules now mean that the party that approaches it must have plus or minus $20.

This is a huge amount to people like farm workers or domestic workers or a struggling business. Further, a certain dress code is required. What then happens to those without special clothes? In my view the Labour Court is supposed to serve all workers and employers as they are. Pushing parties to buy clothes so as to appear “decent” before the court was not the original spirit for the establishment of the Labour Court

Some have blamed small businesses and trade unions for going to sleep when regulations were made and allowing lawyers to run away with the process. Even if that were the case the Labour Court should make rules that are user friendly.

There has been a suggestion by some who feel the Judicial Service Commission should set up an inquiry to take the Labour Court back to its mandate so that it is approachable once again. Some blame the Judicial Service Commission for not keeping the Labour Court within its mandate. Others say there is nothing wrong with the rules, it’s a screening out of useless cases.

In conclusion, I am of the opinion that there must be engagement with the appropriate authority that superintends over the Labour Court where problems will be highlighted and corrective action be taken given that there are many things that have pushed many from the labour.

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