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Davies Ndumiso Sibanda
While I have covered this subject earlier, many employers and workers are beginning to face a lot of challenges with the application of section 93 of the Labour Act which deals with dispute resolution resulting in expensive appeals to the Labour Court and higher courts.
The first challenge is that Labour Officers are not applying the law as they interpret it but they are working on guidelines from the Ministry of Public Service, Labour and Social Welfare as a result no amount of legal argument gets admitted. They deal with matters based on guidelines from the Ministry of Labour not as per submissions of parties. Awards I have seen so far will not even interrogate the legal arguments raised by the parties which now leave the conciliation and arbitration by Labour Officer at times as a bus stop to the Labour Court as parties seek justice.
While this is a sad development which is obviously a product of defectively amending our legislation by the legislature, employers and labour need to ensure that they put their legal arguments correctly from the onset so that when matters get to the Labour Court and higher courts where legal arguments will be interrogated, their story is better understood.
The biggest problem is that there are two subsection 5s which are alive at the same time. This gives a labour officer a choice of either following the old system or the new system and what comes from the Ministry of Labour now is that some officers follow the old system while others follow the new which allow the labour officer who conciliated to adjudicate as well and thereafter refer the matter to the Labour Court.
In some cases, labour officers will make an award before referring to the Labour Court and other labour officers who conciliated refer the matter to other officers for arbitration. Some labour officers will approach the Labour Court and make applications in terms of rule 14. All these approaches present fertile ground for litigation and places labour officers in an unenviable position where they could end up being accused of incompetence as they try to balance applying the law as it should be applied and complying with internal guidelines.
Another challenge for this process is that even at common law, one who conciliates cannot change jackets and be an adjudicator after parties have in confidence, opened their armpits to him and he has also expressed his opinion on the matter. There is likely to be prejudice for one of the parties when this happens. I am of the view that all cases disposed of in terms of section 93 (5) (c) can be successfully challenged on review at the Labour Court or appeal to the Supreme Court on a point of law if one does not succeed at the Labour Court more-so given the fact that section 98 (5)(b) prohibits labour officers which conciliated a case from adjudicating.
Arguments may be raised that the Amendment provisions override original provisions of the Act. In my view that is misreading the law as interpretation of statute principles provide that where an Amendment leaves the original provision intact, the latter Amendment provisions prevail over the earlier provisions only as far as they are reasonable, fair or just. In the present case, the provisions that empowers the labour officer to conciliate and adjudicate a case defeats the principles of natural justice and goes against the grain of interpretation of statute principles. In short, the provisions in my opinion are unreasonable, unfair and unjust.
In conclusion, the legal challenges are so many that it would take several pages to look at them. What is important is that once one receives an arbitration award that he is not happy with, he should seek expert advice and/representation to avoid damages costs.
Davies Ndumiso Sibanda can be contacted on Email: [email protected] or cell No: 0772 375 235
Bongani Ndlovu
Online Reporter