Labour Matters Davies Ndumiso Sibanda
THE new provisions of the Labour Act empowering Labour Officers to decide matters on balance of probabilities as provided for in section 93(5)(C) have caused a lot of confusion as Labour Officers, employers and workers struggle to read the law correctly.

The first thing is to have a consolidated section 93 in order to read the amendments correctly. Section 93 (1) is clear in that the Labour Officer retains the powers to conciliate and if parties agree to disagree, be referred to arbitration where arbitration is an acceptable route to the parties. It is express in that parties have to agree to go to arbitration.

Section 93(2) is express in that once an agreement is reached, the Labour Officer is obligated to issue out a certificate of settlement and where the parties do not agree, subsection 3 requires that at the end of proceedings in terms of subsection 1, the Labour Officer issues out a certificate of no settlement and the parties have to receive their copies of the certificate of no settlement.

Section 93(5) has a requirement that has been taken lightly by Labour Officers and parties appearing before them in that nobody has required proof that the requirements of section 93(5) have been fulfilled.

This section is express there must be evidence that a senior Labour Officer has been consulted and impliedly his position must be known and there must be documentary evidence that this process has taken place.

In my reading of the law, the senior Labour Officer may instruct the Labour Officer junior to him to refer the matter for compulsory arbitration, ask the Labour Officer to ask the parties if they want to go for voluntary arbitration or may instruct the Labour Officer to deal with the matter on balance of probabilities as provided for in section 93(5)(C).

It is the provision of section 93(5)(C) on deciding matters on balance of probabilities that in my opinion is misunderstood and has also legal problems.

The legal problem is that the Labour Officer will have conciliated the matter and taken a position as he advises the parties thus making him unsuitable to preside after a session where due process takes place.

It also contradicts provisions of section 98(5b) which reads,” Provided that the labour officer who attempted to conciliate the dispute which is referred to arbitration shall not be appointed as the arbitrator in that dispute”.

This provision is express and the intention of the legislature is very clear in that it was creating a measure of fairness and at law, where two provisions in the same piece of legislation are contradictory, it is important to then seek guidance from the Constitution.

In this instance, we go to section 65(1) of the Constitution which requires fairness to take place and as such I would want to believe that the separation of roles provided for in section 98 provides fairness thus rendering provisions of section 5C allowing Labour Officers who conciliated matters to arbitrate a nullity.

I believe the matter can be argued successfully. Where the Labour Officer insists on deciding a matter on balance of probabilities, a party can apply for a review of a decision directly to the Labour Court as an urgent matter that way, the chances of having the matter heard by someone who had not formed an opinion are increased. Alternatively, a direct approach to the Constitution Court can be made on the grounds of fairness in terms of section 65(1) of the Constitution.

In conclusion, I am of the view that the powers of Labour Officers to decide on matters on balance of probabilities in terms of section 5C is not legal.

However, we will await someone taking the matter to court for us to get proper direction and again it will depend on the quality of arguments.

l Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235