adminLabour Matters Davies Ndumiso Sibanda
Many employers and workers have been frustrated by the provisions of the Labour Act that state that an appeal to the Labour Court does not suspend the decision being appealed against and have had to hire lawyers and other labour law experts to assist with drafting of stay of execution documents in order to put brakes to the legal process until the appeal is heard.
This provision of the act in my opinion could be unconstitutional as it takes away the right to protection against injustice for by the time the Labour Court decides on the appeal, the order of the lower court or decision of arbitrator will have been implemented rendering the appeal academic in most cases. Settled practice at common law is that an appeal to a higher court suspends the decision of the lower courts. This thinking however requires a lot of research before one can conclusively say it is unconstitutional as there are a number of legal principles to be taken into account.
The fact that during a hearing principles of fairness demand that conditions must not place one party at disadvantage against another makes the provisions of section 92E(2) automatically place one party at an advantage over another at quantification of damages as the damage quantification will be based on a disputed legal foundation by one of the parties thus disadvantaging one party.
On the other hand, workers who would have been wrongfully dismissed have to wait agonising periods and can do nothing as they wait for their appeals to be heard. The employer will be within his rights to keep them out.
Presently the challenge is that labour laws have not yet been aligned with the Constitution. It would however be interesting to see what an arbitrator would do if one of the parties at quantification where there is a pending appeal which is not backed by an application for stay of execution and one of the parties raises the issue of unconstitutionality of section 92E(2). Going through the constitution I am of the opinion that the Arbitrator is bound by provisions of section 174 read with 175 of Constitution where he would have to stay the proceedings and refer the matter to the Constitutional Court unless he finds the arguments frivolous and vexatious. This approach could help clear the position quickly.
In my view, not all arbitrators have the ability or the training to read into these technical legal provisions and come up with sound reading of the law to be able to correctly refer matters to the Constitutional Court. Unless the Labour Act is quickly aligned to the Constitution these matters will remain problematic putting ordinary workers and employers in a difficult position.
With all these problems in place, I am of the view that employers and labour are within their rights to challenge the constitutionality of that clause so as to get to the Constitutional Court and get the correct direction.
Having looked at the legal challenges we cannot ignore the intention of the legislature in enacting the provisions. The provisions were intended to allow for labour matters to be brought to finality through arbitration and what might be attended to are the unintended effects and the provisions could remain in place.
In conclusion, until the constitutionality of section 92E (2) has been settled, it is safe to apply for a stay of execution with each appeal where there is a risk of prejudice if the matter went for quantification before the appeal is heard.
Davies Ndumiso Sibanda can be contacted on:
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Or cell No: 0772 375 235
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