The law and workers who get rulings against them

Davies Ndumiso Sibanda, Labour Matters
THERE is confusion regarding rulings by Labour Officers or Designated Agents where the officer rules against an employee and the employee does not agree with the ruling and Designated Agent or Labour Officer to an extent that many workers feel short-changed.

While I have written an article previously on this subject, it seems many workers and at times Labour Officers or Designated Agents misread the law and approach the Labour Court raising arguments relating to the rulings and when the Labour Court throws the cases out, workers remain confused.

The legal position is simple, the law says in section 93 (5a) (b), there is no requirement for the confirmation of a draft ruling by the Labour Officers or Designated Agents where the Labour Officers or Designated Agents has ruled against the employee in terms of law, once the Labour Officers or Designated Agents has made his draft ruling against the employee and given his copies to the parties, his business with the case has come to an end. He can no longer be involved in the matter.

On the other hand where the Labour Officers or Designated Agents rules in favour of the employee then he has to approach the Labour Court to help the ruling be confirmed, it will be the business of the employer to argue that the ruling should be confirmed.

The above position is guided by the Labour Court ruling in the matter between Patrick Muchovo (DA) vs N. Matenda and 22 others and Steelmakers Zimbabwe (Pvt) LTD, LC/MD/26/2017 where the Labour Court said, “A Labour Officer who makes a ruling and order in terms of subsection (5) (c) shall as soon as practicable
(a)…..
(b) lodge, on due notice to the employer or other person against whom the ruling and order is made (“the respondent), an application to the Labour Court, – to do or pay what the Labour Officer ordered under subsection (5) (c)(ii) and to pay the costs of the application.”
Subsection (5)(c)(ii) relates to a resolution that “(ii) the dispute of right or unfair labour practice must be resolved against any employer or other person in a specific manner by an order-

A.    Directing the employer or other party concerned to cease or rectify the infringement or threatened infringement, as the case may be, including the payment of moneys, where appropriate.

B.    For damages for any loss prospective loss caused either directly or indirectly, as a result of the infringement or threatened infringement, as the case may be; whereupon the provisions of subsection (5a) and (5b) shall apply.”

Thus a simple interpretation of these clauses shows that the legislator was concerned with a situation where something was to be paid or refrained from. In other words it was all about a winning employee. The legislature seemed to want to facilitate a quicker and cheaper method of enabling the employee to enjoy his/her victory as it were. It is not concerned with a situation where the claim is dismissed.

This view is on all fours with the other view that says that the route of appeal in terms of the code of conduct is still open to the parties.

The question arises where the Labour Officers or Designated Agents rules against the employee. What should the employee do? Again the answer is simple, the employee should approach the Labour Court within 21 days of receipt of the draft ruling to have the draft ruling reviewed. However, workers need to be careful as in the event they take hopeless cases to the Labour Court and lose, they run the risk of being ordered to pay the employer’s costs which could be a disaster for the employees.

In conclusion, where the ruling by the Labour Officers or Designated Agentsis in favour of the employer and the worker believes he has prospects of success, he can then apply for a review by the Labour Court.

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