Labour Matters, Davies Ndumiso Sibanda
MANY employers and workers lose cases because they will have approached the wrong forum to have a dispute resolved.
For workers, it must be understood that when one has a grievance against the employer the correct grievance procedures must be followed otherwise a good case may be lost due to failure to follow procedure or exhaust domestic remedies.
Courts do not take lightly people who approach them without exhausting domestic remedies.
Mary was a textile industry worker when she was dismissed from employment using an in-house code of conduct. She was told to appeal to the general manager as set out in the code of conduct if she was unhappy.
Mary felt she was unlikely to get justice from the general manager since he was part of management. She approached the NEC where the NEC designated agent advised her to appeal to the general manager within seven working days as set out in the code of conduct.
Mary was not happy with the advice as, because she had seen the designated agent on several occasions before, she suspected he was in connivance with the employer. Some three weeks later, she approached the labour officer at the Ministry of Labour where the case was registered and set down for conciliation.
At conciliation the employer cited lack of jurisdiction on the part of the labour officer and the fact that the claimant had not exhausted domestic remedies.
The employer said the claimant could not be executed on failure to follow procedure as her dismissal letter directed her to the general manager if she wished to appeal.
Parties did not agree and the matter was referred for arbitration where Mary’s case was dismissed due to failure to follow procedure and the fact that the arbitrator had no jurisdiction over such matters.
This case shows the importance of knowing where to take a case. Most codes of conduct are clear on steps to be followed in disciplinary cases and these must be known and followed.
Some will have two internal stages and thereafter refer matters to the Labour Court. A few will refer non-managerial cases to the NEC.
There are cases where employers and workers should decide whether a case is managerial or non-managerial. Depending on the nature of the NEC, most if not all non-managerial employees are dealt with by the appropriate NEC and managerial disputes are dealt with by Ministry of Labour officials.
Some cases go directly to the Labour Court. The process of deciding, which case goes where is a legal one requiring good knowledge of relevant legislation, and where one is not sure expert advice must be sought.
Failure to take a labour case to the correct forum can lead to a good case being dismissed or the employer can find himself with an open ended liability costing thousands of dollars in compensation to the worker or in carrying the process. Usually, correcting the mistake of going to the wrong forum results in one being out of time to be able to place the case before the correct forum, meaning that one will have to apply for condonation of late noting of an appeal.
The granting of condonation is not automatic as it rests on sound reasons for the delay and prospects of success. Both must be proved and courts rarely grant condonation given the fact that tired arguments like, I had been misled and went to the wrong forum or I was sick or the employer did not tell me where to go to are generally not acceptable to courts.
I recall one case where an employee delayed appealing by eight months claiming he was sick, the court rejected the reason given as there was no proof that he was bedridden everyday throughout the eight months to justify his case.
In conclusion, workers and employers must seek professional advice on how to progress cases so as to avoid problems related to approaching the wrong forum.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235