Davies Ndumiso Sibanda, Labour Matters
WITH many workers who lose cases at the Labour Court having to pay costs to the other party, an appeal to the Court has become a risky business.

The question now being asked by many workers and trade unionists is how just or fair is it for a worker who will have lost employment to be ordered to pay the other party’s costs. In most cases the workers will be destitute by the time the matter is heard at the Labour Court. If the worker has assets it could be a house and some old furniture which will have to be sold to pay the employer.

The legal question is “Was this the intention of the legislature?” Many trade unionists argue that the Labour Court was designed to be a specialised court where proceedings were to be as informal as possible and sensitive to the financial circumstances of the employees and employers and thereafter ensure fairness.

Is it fair to order a former employee who has no income to pay the employer’s costs after losing a case? The employers will obviously say it is fair as the worker will have put themselves into an expense. This argument will have to be dealt with by the courts.

Many workers now fear taking matters to the Labour Court as it means losing money in the event of losing the case. They have witnessed cases of colleagues who lost everything after losing cases hence many opt to accept their fate.

There have been arguments that a number of cases lost by workers at the Labour Court will be due to the quality of representation given that most trade unionists who represent workers at the Labour Court and workers who are self-actors are not well trained in Labour Law as lawyers and human resources practitioners who represent employers.

Some have said in the majority of cases by simply looking at the employer’s submissions and the employee’s submissions one can tell that the employer’s submissions are well researched, backed by cases and brilliant arguments even if the arguments will be misplaced at times.

There have also been arguments that despite the fact that Labour Court Judges try to help the unrepresented workers tell their stories in the end there is general respect for lawyers by the Labour Court Judges thus putting lawyers at an advantage. Such argument is debatable given that rulings by Judges are guided by the law and facts.

One trade unionists said to avoid the risk of the worker being made to pay costs, workers must always hide behind rulings by labour officers or designated agents if they can as the courts will not order designated agents and labour officers to pay costs if they decline to confirm rulings.

It must, however, be acknowledged that there are cases where workers approach the Labour Court with hopeless cases, putting employers in unnecessary costs. In such cases the Courts could be justified to order costs so as to ensure there is no opening of “floodgates” where every dismissed individual appeals.

In conclusion, workers should seek legal advice before appealing to minimise the risk of being ordered to pay costs. However, even after seeking advice the risk remains.

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