Is the Labour Court to blame for delays? Part 1

Labour Matters, Davis Ndumiso Sibanda

WITH cases piling up at the Labour Court due to lack of clarity of the law on what that court should do, many labour consultants argue that the Labour Court could be asking for problems by deliberately avoiding to read the law correctly, while others argue that litigants have not presented pertinent arguments to assist the court interpret the ambiguous provisions of the Amendment Labour Act number 5 of 2015 of section 93(5), which I shall refer to as the latter provisions in this article.

The argument that Labour Court judges are afraid of “getting out of the crowd” is gathering momentum as labour consultants view the efforts being made by the court to “sanitise” the amended Act as irregular given that the business of sanitising legislation rests with Parliament and the Labour Court’s business is to read the law and not import High Court rules to the Labour Court or craft regulations to “sanitise” defects of section 93 (5) of the Labour Act.

While some have argued that the Labour Court is within its legal rights to “sanitise” defective legislation or to amend rules to talk to amendments, the big debate relates to what is the correct reading of the law.

My reading of the law relating to the present challenges of having two live Section 93(5) is that the provisions of the Labour Act Amendment number 5 of 2015 present a legal problem as to which one is applicable.

The original provisions read: “(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him and to whom he is responsible in the area in which he attempted to settle the dispute or unfair labour practice —

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service; or

(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to compulsory arbitration; or

(c) may refer the dispute or unfair labour practice to compulsory arbitration if the dispute or unfair labour practice is a dispute of right; and the provisions of section ninety-eight shall apply to such reference to compulsory arbitration.”

And the latter provisions read: “(5) After a labour officer has issued a certificate of no settlement, the labour officer, upon consulting any labour officer who is senior to him or her and to whom he or she is responsible in the area in which he or she attempted to settle the dispute or unfair labour practice –

(a) shall refer the dispute to compulsory arbitration if the dispute is a dispute of interest and the parties are engaged in an essential service, and the provisions of section 98 shall apply to such reference to compulsory arbitration; or

(b) may, with the agreement of the parties, refer the dispute or unfair labour practice to voluntary arbitration if the dispute is a dispute of interest; or

(c) may if the dispute or unfair labour practice is a dispute of right; make a ruling that, upon a finding on a balance of probabilities that:

(i) the employer or other person is guilty of an unfair labour practice; or

(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order-directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate:

for damages for any loss or prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be: whereupon the provisions of subsections (5a) and (5b) shall apply.

(5a) A labour officer who makes a ruling and order in terms of subsection

(5)(c) shall as soon as practicable-

(a) make an affidavit to that effect incorporating, referring to or annexing thereto any evidence upon which he or she makes the draft ruling and order; and

(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent”), an application to the Labour Court, together with the affidavit and a claim for the costs of the application (which shall not exceed such amount as may be prescribed), for an order directing the respondent by a certain day (the “restitution day”) not being earlier than thirty days from the date that the application is set down to for hearing (the “return day” of the application) to do or pay what the labour officer ordered under subsection (5)(c)(ii) and to pay the costs of the application.

(5b) If, on the return day of the application, the respondent makes no appearance or, after a hearing, the Labour Court grants the application for the order with or without amendment, the labour officer concerned shall, if the respondent does not comply fully or at all with the order by the restitution day, submit the order for registration to whichever court would have had jurisdiction to make such an order had the matter been determined by it, and thereupon the order shall have effect, for purposes of enforcement, of a civil judgment of the appropriate court.”

There is obvious conflict between the two provisions and it is this conflict that I will address today and in subsequent articles.

The starting point where two provisions of legislation are alive and do not agree, the latter amendment superseded the earlier amendment which would mean that the Labour Act Amendment number 5 of 2015 section 93(5) supersedes the earlier provisions.

However, interpretation of statutes principles provide a rider to this principle and that is, the latter provisions only supersedes the earlier provisions only as far as they are reasonable. It is the argument of reasonableness that many consultants feel has not been argued at Labour Court level and if argued the argument has been robust enough.

This is so because the latter provisions of section 93(5) of the Labour Act are in my reading of the law unreasonable as before the person who conciliates with parties open their armpits and thereafter the same person goes ahead and make a ruling in terms of section 93(5)(C) and thereafter the same person descends to the arena and applies to the Labour Court for the confirmation of his order.

This clearly goes against principles of natural justice and makes the process unreasonable thus making it impossible to have the latter provisions of section 93(5) applicable.

To be continued

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