Davies Ndumiso Sibanda
ON 6 October 2017, the Labour Court issued a circular on right of audience by labour consultants in the Labour Court and it reads as follows:
“Section 92 of the Labour Act (Chapter 28:01) clearly provides the persons who have the right of audience before the Labour Court. It has been observed with great concern that some Labour Consultants insist on representing parties in the Labour Court despite them having no right of audience.
This practice is perpetrated by some employers who issue Labour Consultants with contracts of employment as Human Resources Officers when in actual fact they are not so employed, but only provide consultancy work on labour issues as and when these arise.
Once such scenario is where one Labour Consultant is said to be employed as a Human Resources Manager by different institutions at the same time and to prove his right of audience produces different contracts of employment for each case as and when he appears in the Labour Court.
This practice is a breach of clear provisions of the law for which serious consequences may follow”.
The circular was issued by Senior Judge of the Labour Court and copied to the Chief Justice. While it is true that section 92 of the Labour Act Chapter 28:01 bars labour consultants from representing parties before the Labour Court, human resources practitioners employed by individual organisations are not bared from representing a party before the Labour Court.
Having been in the labour consulting business for over 25 years inclusive of my time as a human resources practitioner, the area of representation by labour consultants has been a battlefield between lawyers and labour consultants due to rich financial pickings from the sector.
Labour consultants are not sure whether this circular is a genuine concern by the Labour Court or the Labour Court has decided to jump into the arena and fight on the side of lawyers. This is so because there are many employers who employ consultants on fixed term contract basis ranging from one day to several months depending on the assignment the employer wants the labour consultants to do. This practice is there across all professions. The nature of contract depends on costs and other legal implications.
There are many people who are employed on fixed term contract to perform specific tasks and these will be legitimate fixed term contracts. However, what the Labour Court has said is that employers can hire labour consultants on short fixed term contracts to perform all human resources work except representing the employer before the Labour Court even if they are putting on the hat of a managerial employee.
The fairness and legality of this would only have to be decided by the Courts. I find it quite absurd that from now onwards when employed on a fixed term contract by an individual organisation and because I work for many of them, I’ll have to say I can do all work on fixed term contract except representing you before the Labour Court. I am not sure whether that was the intention of the Labour Court.
In my opinion what the Labour Court should be doing is to establish the authenticity of the appointment letter or fixed term contract which legitimatises the appearance of the particular individual before the Labour Court given that many organisation large and small do not want to hire full time human resources practitioners neither do they want to pay consultancy retainer fees or pay consultancy fees but would rather employ a labour consultant as fixed term employment contract employees to work as human resources officers or managers until the problem at hand is resolved.
However, this circular now impliedly dictates to employers that they can no longer rely on such cost effective contracts when there is a matter before the Labour Court but should go to lawyers given that most of them do not have the expertise.
Some labour consultants believe the circular can be challenged constitutionally given the fact that it now by implication regulates who employers should employ and also given the spirit of the Labour Act that it should be as informal as possible and be user friendly for employers and workers not as rigid as other Courts.
Some labour consultants have, however, been the cause of the issuing of this circular because of the way they conduct themselves which is an insult to the labour justice system, however, I do not think the solution to the problem lies in what the circular says but regulating the profession.
In conclusion, the best way out for labour consultants is to come together, register a credible labour consultancy body and approach the Ministry of Labour and negotiate an acceptable way of resolving the problem because I do not think all labour consultants are a burden to the labour justice delivery system but there are many who add value.
Davies Ndumiso Sibanda can be contacted on: email: [email protected]; or cell No: 0772 375 235.