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Davies Ndumiso Sibanda
MANY workers litigate after dismissal because they wrongly think all dismissal cases are winnable but end up in more problems when they lose cases with costs.

Once one has been dismissed from employment, it is wise for an individual to seek legal advice on prospects of success if one challenged the dismissal. Not anyone can give correct legal advice thus workers should not approach anyone who cares to listen for advice.

Due to economic hardships faced by the country, there are now many bogus labour law experts. Not all trade unionists, human resources practitioners, human resources consultants and lawyers understand labour law, but unfortunately because they are desperate for money, they will advise that there are prospects of success even if the case is hopeless.

The first problem with pursuing a hopeless case is that in the event the case is lost and the employer was represented, the case could be lost with costs, which could be unaffordable to the individual leading to personal assets of employee being attached to pay the cost and not to mention that in many cases individuals fail also to pay their own representatives.

Who then can give expert advice? Expert labour law advice can come from a properly trained member of the workers’ committee, former members of the workers’ committee who were trained in discipline law, trade unionists who have had para-legal training, labour consultants who are qualified in labour law, lawyers who specialise in labour law and in the majority of cases human staff from the organisation will tell you if your case is hopeless although their advice is usually viewed with suspicion.

In addition, there is a need to research the track record of the individual. I know of some labour law practitioners who have had mixed results with cases at lower courts but when matters reach the Labour Court or Supreme Court, none has been won. For some, one can easily tell by lack of depth when giving advice or preparing legal documents. It is not the amount of noise one makes before the Arbitrator or judge that matters but the quality of argument.

The employee should also do some soul searching before appealing a dismissal. There is no point in appealing when one knows he was in the wrong simply because a procedural error has been spotted. A simple procedural error will not vitiate proceedings unless there was prejudice. Simply put, failure to follow procedure in labour cases is generally not a big issue with the courts, while it is desirable that procedure be followed minor deviations will not result is the collapse of the case.

The courts will proceed to look at the merits of the case and if your case is hopeless, the costs could be heavy. Dismissed employees need to avoid being seen as “ATMs” by representatives who see money and keep the case going indefinitely so that they continue to raise invoices against the worker until the money is finished and usually that is the time when workers realise they have been misled.

Some workers have been emotionally destroyed ending up dying or having stress related diseases due to disappointment related to losing cases they were told were winnable. In appealing one should always leave room that the case might be lost.

In conclusion, appealing can leave a former employee destitute thus one has to apply his mind before doing an appeal.

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