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“It has to be noted that there is a difference between labour and commercial arbitration.
“The majority of the labour arbitrators, to the best of my knowledge, do not have any legal training. Most of them appear to have been drawn from designated agents (National Employment Councils).”
Mr Masunda recommended formal training for arbitrators for them to write meaningful awards or judgments.
“There is need for training the arbitrators on the law of evidence, contract law, award writing and the law of delict so that they properly deal with the cases and come up with well reasoned awards,” he said.
Mr Rodgers Matsikidze of Matsikidze and Mucheche Law Chambers blamed the Ministry of Labour for problems in the arbitration system.
“I blame the ministry for failure to come up with a regulating authority on the arbitrators in the country. Arbitration should not be a money spinning venture but it should serve the people.
“The ministry is empowered to come up with a statutory instrument to that effect,” he said.
Mr Matsikidze, who is also an arbitrator, added that unqualified arbitrators should compulsorily go through labour arbitration training like the one offered at the University of Zimbabwe.
He said it was important for arbitration awards to be recorded in the law reports like any other cases to guide arbitrators in arriving at appropriate decisions.
Mr Alec Muchadehama of Mbidzo Muchadehama and Makoni described labour arbitration in Zimbabwe as “an unregulated industry” in which any arbitrator would do as he or she likes.
“It is an unregulated industry. Arbitrators charge what they want without any set tariff. They should not just throw out figures from the blues.
“There are no standards as to how they should write judgments. Some of the arbitrators are public relations and human resources practitioners who have no legal qualifications, which makes their competence questionable,” said Mr Muchadehama.
Mr Joel Mambara of J Mambara and Partners called for the urgent establishment of the regulating body to end the “fees madness” and to improve the quality of justice in labour cases.
“There should be an authority to regulate the industry. Tariffs are not regulated and the ethical standards need to be regulated as well,” said Mr Mambara.
He added: “Under normal circumstances, if you have any ethical complaints or grievances against an arbitrator, the only way is to note an appeal at the Labour Court.
“They charge what they want. At the end of the day, people will be discouraged from pursuing their cases.”
Mr Mambara queried the allocation of the cases to arbitrators on a rotational basis.
“The arbitrators are from different backgrounds and the allocation of cases by the labour officers is not based on their particular skills and competencies. Cases are allocated on a rotational basis without considering their skills.
“Thus arbitrators may be given cases which they have no skills to handle,” he said.
Another lawyer who spoke on condition of anonymity said: “As lawyers, there are some arbitrators who do not know the law to an extent that we are afraid of appearing before them. Some of the judgments are pathetic and most of the decisions are quashed at the Labour Court.”
Lawyers and interested parties say the labour process was now beyond the reach of many considering that litigants have to pay for the services of both the lawyer and the arbitrator.
Some arbitrators are being accused of deliberately delaying the processes so that the parties appear before them repeatedly for a fee.
Arbitrators are paid per sitting and their decisions, according to some lawyers, have sparked several appeals thereby making the process very long and expensive.
Each party in a labour dispute is required to pay 50 percent of the fees charged by the arbitrator.
This, according to the concerned people, would negatively affect the workers who do not have money.
The development has resulted in many workers failing to pursue their labour cases even if they have strong cases.
Advocate Thabani Mpofu described the “piecemeal orders” by the arbitrators as a money-spinning venture that impacts negatively on the poor labour litigants.
“On reinstatement, the arbitrators normally grant the orders and indicate that the worker should be compensated for damages in lieu of reinstatement without specifying the quantum.
“The parties are asked to negotiate on the damages, which is clear that they never agree on the figures.
“The parties are forced to go back to the arbitrator after failing to agree on the damages. I think arbitrators should just order reinstatement and at once direct the employer to pay specific damages in the event that reinstatement is no longer possible.
“Such an order will avoid unnecessary follow-up appearances before an arbitrator who needs to be paid,” said Adv Mpofu.
Another lawyer, who refused to be named, said there was need for arbitrators to be qualified lawyers, who have a better understanding of the law because several decisions by the arbitrators were being quashed by the higher courts.
“Several decisions by the arbitrators are being quashed both at the Labour Court and Supreme Court. Some judgments by arbitrators show that the arbitrator does not really appreciate the law.
“There is need for appointment of legally qualified personnel to be arbitrators whenever it is necessary to ensure the smooth flow of justice,” said the lawyer.
Mr Selby Hwacha of Dube Manikai and Hwacha said the arbitration process was very important hence the need for an authority regulating it.
“This is a noble idea although it is still very new in the system.
“What is now required is proper regulation of the process. I think more lawyers should be appointed as arbitrators as a way of controlling the fees charged and to ensure quality justice.
“The more the arbitrators in the system, the lesser the fees they charge,” said Mr Hwacha.
Online Reporter