adminLabour Column Davies Ndumiso Sibanda
When the Labour Amendment Act became law, there was a lot of joy among works who hoped the Amendment Act would not only bring them relief from dismissal, but would also bring a measure of fairness in terms of financial packages to be paid by employers.
Evidence on the ground shows that labour dispute resolution related to termination on notice could be approaching paralysis point as many workers are not getting the anticipated retrenchment packages and labour litigation related to terminations on notice has confused employers, labour officers and workers resulting in a position where nothing is moving as parties cautiously battle with legal complications.
When the employers took class action through EMZOC, everybody thought the disputes will soon be over, but what has happened is that almost all employers who are members of EMCOZ have not paid a single cent in retrospect, but have handed their cases to their lawyers who are attending to every case from their members.
This simply means that all workers whose claims for packages have been referred to EMCOZ cannot move forward until the litigation route is exhausted, most probably all the way to the Constitutional Court, a thing that could take several years.
For unions, it is a huge setback as the cases are now locked in the courts while their members struggle to make end meet.
Those workers who have attempted the retrenchment route have found the employers pleading financial inability to pay at the same time the employers are applying for exemption from pay anything.
Some employers are even arguing that retrenchment process cannot proceed due to class action which they are part of.
Thus the workers have no way of getting any compensation through this route again. Matters remain parked there as well.
On dismissal cases, workers have raised cases of unfair labour practice before the labour officers and designated agents.
This route also has been paralysed at some point as the Amendment Act provisions do not talk to the Labour Court rules thus the cases cannot be referred to the Labour Court outside rule 14 of the Labour Court Rules.
This means that the cases get parked again. Labour officers and designated agents are avoiding approaching the Labour Court due to the unintended consequences of the Amendment Act which requires the labour officers and designated agents to descend into the arena and fight the case on behalf of one of the parties before the Labour Court. This has resulted in the cases being parked with no solution available.
The presence of two section 93(5) has caused a lot of confusion to the extent that in some cases both unions and employers have lost confidence in the labour justice delivery system and try to find solutions among themselves and in some instances labour officers and designated agents are also not sure of what to do.
In conclusion, as a nation we cannot sit and wait for the labour dispute resolution mechanism to grind to a halt.
There is a need for government to accept that mistakes were made and engage all stakeholders to come up with a solution.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell no: 0772 375 235
derick.khumalo