Self-actors and labour hearings

DUE to financial limitations many workers and small businesses cannot afford to get legal representatives to handle their labour disputes and as a result they approach the Labour Officers and Designated Agents unrepresented, a thing that creates many problems for them.

Labour law is not as simple and straight forward as it looks. There is a need for the parties to fully understand the basics so as to be able to take their cases through the legal process successfully. Many employers have been misled into believing that as long as they are convinced that they have a case against an employee, they can go ahead and dismiss even if they do not follow procedure.

While the law says labour cases should not be decided on procedure but on merits of each case, the Supreme Court has said where failure to follow procedurecreates prejudice on the other party, then failure to follow procedure can be a material issue and lead to collapse of a case.

Employers and individuals who are not represented need to have basic understanding of labour dispute resolution machinery that is available and be able to handle the necessary documentation at every stage.

The challenge arises when the matter gets to the Labour Court where they have to be followed and failure to follow rules can lead to the collapse of the case.

Where the matter is a disciplinary case, the starting point is for the employer to go through the appropriate code of conduct and following set procedures in charging the employee, citing the correct charge, collecting evidence procedurally, conducting the hearing fairly and making a determination as guided by the evidence led, mitigation and other important relevant factors. Very few employers can do all these without training.

Workers on their part do not need to be emotional when they have been charged with misconduct but must read the charge carefully and relate to the code of conduct. It is advisable to approach the Workers Committee or your Trade Union representative without delay and seek assistance. Where there is none or the employee is a managerial employee he or she can seek assistance from labour experts.

There is one group of people who are readily available to give general advice and these are Government Labour Officers from your local Ministry of Labour Office. The NEC Designated Agents from your local NEC offices and the Human Resources practitioners at your workplace. All these have a duty to assist both parties in labour matters.

For employers there is a need to clearly understand the purpose of discipline handling, amongst other things it includes getting rid of an employee who has committed misconduct that goes to the root of the relationship, however, the most important role of discipline handling is to repair rather than disposal.
Simply put, discipline should be corrective as much as possible before dispersing of the human asset. When one appears before the Labour Officer, Designated Agent or Labour Court there is no need to panic.

The starting point is for the party to be certain that they have a reasonable case and to understand that at Labour Court level if one loses he or she is likely to be ordered to pay costs of the party depending on the circumstances of the case.

It is advisable to avoid taking hopeless cases to the Labour Court as a loss with costs can leave the party with a huge legal bill running into thousands of dollars. Where one believes he has a good story to tell, then on appearing before Labour Officers, Designated Agents and the Labour Court one has to present solid evidence and be able to tell his story at a reasonable flowing pace to be understood.

In conclusion, it is advisable for parties to ensure they have basic training in dispute resolution to be able to correctly conduct themselves before various labour tribunals.

Davies Ndumiso Sibanda can be contacted on: Email: [email protected]