Davies Ndumiso Sibanda

MANY individuals and small businesses can no longer afford labour litigation costs. The situation even gets worse when a case is lost with costs.

An average labour case from an internal hearing right up to the Labour Court can easily cost more than RTGS$100 000 (US$1 200 on the parallel market) depending on how complex it becomes along the way.

This is money that many workers do not earn in a year in RTGS$ and would also leave many small businesses bankrupt or struggling.

In my view, as things stand today, employees and small businesses should stay away from the Labour Court, Labour Officers and NECs when they have disputes but should instead opt for voluntary arbitration, which is final and costs can be controlled. This might sound weird or unreasonable but the few organisations that have taken this path are finding dispute resolution cheap and fast and their labour relations is more stable.

Admittedly, Government institutions and parastatals might have no problem with the cost of litigation as the money that is lost in the process is not personal funds for the employer, even if the case is lost, only the employee suffers where he/she has to pay the costs. I have heard many times officers from parastatals and Government institutions boasting that if the worker takes them head-on, he should remember that he will get broke and Government does not get broke. Unfortunate as such a statement may be, it is the true position on the ground. It is my wish though that public sector institutions as well are allowed to go for voluntary arbitration in order to protect public funds and not individual egos.

Labour Court procedures have not helped the situation as they have become so complex to an extent that ordinary workers and employers are unlikely to correctly file their papers resulting in loss of cases that could have been won. In my opinion, until the Labour Court rules are loosened to allow a general worker, an ordinary farm worker and a shop assistant in Tsholotsho to be able to file papers on their own, voluntary arbitration remains the best option.

Employers and workers have to sit at Works Council and include voluntary arbitration as an option in dispute resolution even without the amendment of the Code of Conduct at Common Law, voluntary arbitration remains available to the parties. I believe at the end of an internal discipline hearing or internal appeal; parties should go straight for voluntary arbitration which is final and unappealable. The moment an appeal goes to the NEC, Labour Officers and the Labour Court, one must know that he is exposing himself to huge financial obligations and the courts could be an open ended liability as it is unknown what the costs will be like when the matter is eventually heard and for workers, in case the matter is lost with costs, the case could leave them destitute.

In conclusion, employers and workers should learn more about voluntary arbitration and until the cost of labour litigation becomes affordable, stay with voluntary arbitration.

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