Labour Matters, Davies Ndumiso Sibanda
REFERENCE of cases to the Labour Court by Labour Officers is seen as miscarriage of justice by many today as some cases are either not concluded or concluded in strange ways.
The Labour Act Chapter 28:01 provisions of section 93(5) given in the latter Amendment of the Labour Act are beginning to show how defective the provisions are as parties sometimes get what they view as a raw deal from Labour Officers and the Labour Court.
John (not his real name) was dismissed by the employer using the National Employment Code of Conduct. He appealed to the Labour Officer in terms of section 93 of the Labour Act and thereafter the Labour Officer made a ruling in his favour but when the matter was set down before the Labour Court, the Labour Officer told the judge he was withdrawing the case leaving John in limbo. John is now confused and is not sure what to do next.
The first question John raised was why did the Labour Officer withdraw the case and what next should he do? John felt hard done by the Labour Officer as he should have been consulted before the case was withdrawn worse still he should have at least been given the reasons for the withdrawal or the judge should at least have protected his rights when the Labour Officer was abandoning him without notice.
As a lay person he was not sure whether it was the end of the case or the matter could be presented again to the Labour Court. He also asked himself the question whether he could sue the Labour Officer for malpractice as he was litigating on his behalf and was suddenly dumped before the judge who allowed the withdrawal of the case without questions or directing John to where he could get relief.
Another problem for John is that he did not hire the Labour Officer to represent him before the Labour Court and neither did he ask him to advance arguments raised in his submissions to the Labour Court and he did not have an input into the withdrawal of the case.
He felt the Labour Court should at least have considered all these matters before agreeing with the Labour Officer.
Talking to lawyers, some have advised him that it is the end of the case, others have said the matter can be resuscitated through the Labour Officer again, others have said he can file for malpractice against the Labour Officer for withdrawing the case without consulting John, others have said the Labour Officer had no obligation to consult John as the Labour Officer had presented his draft order for confirmation and he had a right to do anything about it as it was his, others have advised john to approach the Labour Court to review the Labour Officer’s decision, and others have argued that John should approach the Court and challenge the constitutionality of the new section 93 (5) provisions, which allow the same Labour Officer to conciliate, adjudicate and litigate on behalf of one of the parties without being requested to do so.
All these questions require legal minds to handle as they are too complex for an ordinary workers or employer. What is true, however, is that the whole process is not workable and in my opinion fails the fairness test provided for in section 65(1) of the Constitution of Zimbabwe.
As mentioned in one of my earlier articles, the new provisions of section 93(5) should be abandoned and parties resort to the earlier provisions.
Smart employers and workers at conciliation should insist that cases be disposed of in terms of section 93(1), which reads:
“A labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, shall attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration” that way the problems related to the latter section 93(5) are avoided since parties will go for arbitration thus avoid placing the Labour Officer in the position of litigant where parties lose control of their cases.
In conclusion, the challenges related to rulings by Labour Officers will continue until the Labour Act is amended or one of the Labour Court Judges makes a ruling striking down the latter provisions of section 93(5).
Alternatively finality can easily be reached when a decision is made on one of the cases that has been referred to the Constitutional Court.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] Or cell No: 0772 375 235