Davis Ndumiso Sibanda
THE unintended consequences of the Labour Amendment Act Number 5 of 2015 has been that the dispute resolution mechanism was left in disarray with some arguing that Labour Court Judges have been reduced to “Labour Officers” as all cases that go outside the workplace have to be “decided” by Labour Court Judges in the first place and Labour Officers are merely recepticles that receive cases, processes then and pass all of them to judges.
One of the challenges is that the dispute resolution process presently is not governed by the provisions of the Labour Act but what Ministry of Labour Officials feel is the intention of the Labour Act. This has resulted in a lot of legal questions being raised as the cases march to the Labour Court.
I am of the view that the Labour Court Judges have not been reduced to Labour Officers, however, what is happening is that they are unlikely to cope with the volume of work from Labour Officers and Designated Agents as now all cases where there is no agreement end up at the Labour Court.
The situation calls for appointment of a large number of Judges to maybe stationed at every centre where there are Labour Officers and Designated Agents. The more reasonable alternative is to abandon the new provisions of section 93 (5) of the Labour Act and resuscitate issuing of Certificate to arbitrators.
While I have been very critical of the way some arbitrators do their work, I am also aware that most employers have strong hatred for arbitrators, I do not believe the solution is to extinguish arbitration altogether.
What is required is to correctly regulate labour arbitration in line with what has been done in other countries.
Our arbitration rules leave a lot to be desired and in their present form clearly they add to the confusion.
Matters that were started before the Amendment Act are now being disposed of in terms of the new legislation due to directives to that effect.
I am of the view that such action is miscarriage of justice and can easily be picked up even by a freshman at Law School, meaning that the cases are likely to be thrown out at the Labour Court if this argument is raised.
The act of progressing such cases in terms of the new legislation adds to the confusion.
Not long ago I attended a hearing where both parties wanted their dispute to be disposed of in terms of section 93(1), which involves referring the dispute to arbitration if parties do not agree to a settlement but agree to go for arbitration.
The Labour Officer, with a straight face, told the parties that despite the clause being alive in terms of the Act they have been given a directive to ignore it and progress matters in terms of section 93(5) of the Amendment Act.
Surely this blatant ignoring of legal provisions provides a basis for the challenge of the process. In my opinion as the Law standards the Registrar of Labour Relations has a legal duty to appoint Arbitrators to allow for the disposal of disputes in terms of section 93(1) and section 104 and the old provisions of section 93(5).
As mentioned in my earlier articles, I doubt that the new provisions of section 5 can survive the legal scrutiny for fairness.
I have been asked the question, What should one do if the Labour Officer or Designated Agents refuses to refer a matter to arbitration when parties have opted for arbitration in terms of section 93(1).
There are a number of options, one can wait and challenge the legality of the process thereafter or one can approach the Labour Court and apply for a review of the Labour Officer’s decision.
In the majority of cases Labour Officers and Designated Agents will not oppose when they know the law is not on their side.
In conclusion, the confusion over dispute resolution process is likely to continue moreso with cases reaching the labour court and parties questioning the legality of the whole process.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell No: 0772 375 235