adminDavies Sibanda Labour Matters
MANY employers, unions and lawyers have wrongly argued that labour consultants and other individuals with knowledge of labour law cannot appear before arbitrators.As the law stands at present the provisions of Arbitration Regulations (Statutory Instrument 173 of 2012) are silent on representation before arbitrators meaning that anybody can represent a party before an arbitrator.
The same legal position applies to representation before disciplinary authorities at workplaces and at NEC level, where the code of conduct or NEC appeals procedures are silent on representation.
In the matter Inter Agric Private Limited vs Allan Mudavanhu (Civil appeal No SC 188/11) in a judgement delivered in March 2015, the Supreme Court ruled that provisions of Statutory Instrument 217 of 2000(54) which specifies that representation before a labour officer cannot be extended to arbitrators.
The court stated that, “There is a clear distinction between a Labour Officer and an arbitrator and their respective functions under the Act. Appearance before a Labour Officer cannot be read or stretched to mean appearance before an arbitrator”.
This judgment puts to rest disputes related to representation before arbitrators basing on provisions or Statutory Instrument 217 of 2003.
Some employers, unions, lawyers and NECs have sought to restrict representation before arbitrators using provisions of the Labour Act section 92.
Again this argument was dismissed by the Labour Court in the matter Solta Trading Company (Pvt) LTD vs Chigwaza case No LC/11/308/14 in a judgement delivered in August the same year.
In this case the Labour Court said its powers in terms of section 92 are “. . . clearly not extended to arbitral tribunals.” It went on to say before Arbitrators . . .” a party may be represented by any person of their choice”.
The lessons from these two judgements are that discipline authorities should not give themselves powers that they do not have.
Where the disciplinary authority, Local Joint Committee of the NEC or their appeals committee does not have power to do certain given things, they should not give themselves powers given to other bodies.
Where the code of conduct is silent on representation then anybody can represent a party before the disciplinary authority or arbitrator.
In conclusion, I believe these two judgements put to rest many disputes over representation before Arbitrators and disciplinary authorities.
Davies Ndumiso Sibanda can be contacted on: email: [email protected]. 0772 375 235.
Bongani Moyo
Online Reporter