adminLabour Matters Davies Ndumiso Sibanda
MOST employers take the arbitration process lightly because they do not understand the implications of an arbitration award as they see it as an easy way out of a labour problem only to find themselves stuck with a bigger problem.
Before going for arbitration employers are advised to seek expert opinion on the possible implications of the arbitration, especially arbitration that could result in the employer having to compensate workers in cash.
One employer had wages arrears that added up to several thousand dollars, which he was struggling to pay until workers took the matter to the Labour Officer who conciliated but parties could not agree resulting in the matter being referred to an arbitrator to decide on whether the workers were owed money and if owed money when the employer should pay.
At arbitration the employer conceded he owed workers money and promised to pay but could not commit to a date because he had no money and business was difficult. The workers demanded to be paid all salary arrears by the end of the month.
When the award came the employer was ordered to pay wage arrears within 14 days.
The employer could not raise the money within 14 days neither did he appeal the arbitration award.
After a month workers approached the arbitrator for quantification and the arbitrator quantified and thereafter workers registered the award with the High Court resulting in the employer’s property being attached and sold.
The business collapsed thereafter and the workers lost their jobs and the sale of assets could not raise the amount owed to workers.
There are many schools of thought as far as attaching and selling the employer’s property.
There are some who believe it is ok to attach the property even if it means the collapse of the business and others believe whatever means used the assets that make the business should not be sold thus parties have to work payment plans.
Experience has shown that parties that negotiate a payment plan and live by it are better off in most cases than those who push for sale of plant and equipment workers use as this leaves the business without capacity to pay workers.
Another challenge is that in this depressed economy and with aged plant, takers are few and the prices are generally very low. I know of cases where some seized plant has failed to attract buyers.
Going back to employers and arbitration. It is important for employers to be realistic during the conciliation stage and accept a win-win or lose-lose settlement in cases that are legally dodgy.
It must be noted that when a case reaches arbitration stage in most cases it will have reached a level where a reasonable amount of legal footwork is required and the employer might not have the skill.
Imagine a case where an organisation employs someone as a volunteer and at the end of the relationship, the individual claims unfair dismissal. In my view in such cases the territory gets to a point beyond the employer to handle as parties are likely to raise legal issues such as defining what a volunteer is, was the relationship that of an employer and employee as defined in the act.
Did the individual have specific duties? Was the individual paid something, at what interval was the payment, what was the payment for, should volunteers be paid. Can the volunteer relationship be regulated by the act. Was there a contract, what did the contract say and many other questions to help arrive at whether the individual was an employee or not.
Experience has shown that in many cases where employers try to be labour law fundis and handle cases themselves they tend to agree to terms of reference that sink their cases as they ignore material legal questions during the crafting of terms of reference resulting in a clear case, which the employer could win being lost at a huge cost to the business.
At times due to excessive desire to dismiss an employee ,employers rush processes and out of ignorance of the law they think they will dramatise before the arbitrator not knowing that the arbitration award is guided mainly by evidence presented by the parties.
In conclusion, employers who are not trained in discipline law and dispute resolution must seek guidance when dealing with arbitration matters.
Davies Ndumiso Sibanda can be contacted on: email:[email protected]
Or cell No: 0772 375 235
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