What is involved in arbitration?

Labour Matters Davies Ndumiso Sibanda
While labour arbitration has been with us for some years now, many employers and workers continue to struggle with it, mainly having to understand what it is and related process.
In terms of Zimbabwe’s labour laws, arbitration is a form of alternative dispute resolution to parties at any stage of a labour dispute and is also part of the compulsory processes in dispute resolution in some instances.

The purpose of arbitration in most instances is to bring a labour dispute to a quick but just conclusion.
In dismissal cases the duty of arbitrators is to determine whether the dismissal was  fair given the evidence presented by the parties.

The job of the arbitrator in a labour case goes further to establish whether the employer acted in a fair manner in dismissing the employee. The arbitrator will go into the record of the case and call for oral evidence if needed to establish procedural and substantive fairness.

The arbitration process is made of six phases that must be understood by both employers and workers if they are to be successful and have a just arbitration rocess.

The first stage in arbitration after a matter has been presented to an arbitrator is preparation and introduction.
This phase involves making sure all required documents are available as parties settle into the negotiations.

This can include confirming acceptance of arbitrator, choice of language to be used, rules to be followed during the process, roles of parties particularly that of arbitrator, complainant and defendant and the fact that at any stage the parties can conciliate.

The second stage is dealing with preliminary issues. These are mainly legal issues that have to be dealt with before parties can look into the merits of the case.

These can include condonation of having certain evidence admitted, issues of representation and other procedural matters.
The third phase is where the issues in dispute are narrowed down and reaching agreement on legal and factual issues even if terms of reference are given in terms of the certificate of reference of matter to arbitration.

The fourth stage is where parties present evidence to the arbitrator.
This is the stage where parties have to clearly tell their story to the arbitrator.

The fifth stage is where parties present arguments in support of evidence present. This is the stage where witnesses are called and exhibits are presented.

The last stage is when the arbitrator looks at all the submissions made and makes an award and whoever is unhappy can then appeal to the labour court only on a point of law.

The law does not ordinarily allow for appeals against findings of fact, it is only allowed in cases where the findings of the arbitrator are so outrageous that they defy logic as to how they were arrived at.

In conclusion parties need to understand arbitration rules before they engage in arbitration to benefit from the arbitration.