The Hieraarchy of Labour Disputes

THE HIERAARCHY OF LABOUR DISPUTES UNDER THE LABUR ACT

Conciliation-Labour officer and designated agents

ü  In a dispute between the employer and the employee, the first port of call is the labour officer

ü  His mandate is to hear the matter and attempt conciliation where possible or refer for arbitration if agreed by both parties.

ü  The labour officer is obliged to keep records of the proceedings, section 93 of the Labour Act

ü  If a party is not satisfied with the determination of the labour officer that party can appeal to the labour court.

ü  The labour Court is a full court. Its duty is to

·  Hear the appeal

·  Decide on it

·  Refer it back to the labour officer, if need arises

ü  NB the labour officer and the labour court are administered under two different governments, i.e that of Justice and that of labour

ü  If the dispute is not settled within 30 days after the labour officer began to attempt to settle it, the labour officer shall issue a certificate of no settlement to the parties

ü  Appeals against the ruling of the labour court go to the supreme court

Arbitration

ü  The second method of dispute resolution is arbitration

ü  It exist in 2 forms ,voluntary and compulsory

ü  Section 98LA,compulsorr arbitration is when there is mandatory refernce to an arbitrator on the Ministry Arbitration Panel by a conciliator or by the labour court in terms of Section 89.It is governed by the LA as read with the Arbitration Act

ü  Voluntary arbitration is whereby the parties agree to their dispute to arbitration and the arbitration is governed by the arbitration Act

ü  The arbitrator must act fairly

·  Give the parties reasonable equal opportunity to present their cases

·  At the hearing, parties may appear in person, or may be presented on their choice.

ü  After hearing both parties, the arbitrator must make an award to settle the dispute. The award may be by consent of the parties or determinant by the arbitrator, or the majority of arbitrators. The award must give a conclusion and contain clear reasons for the award unless the parties have agreed otherwise or it is by settlement

ü  Appeals against awards made under compulsory arbitration lie with the labour court whilst application for review of an award made under voluntantary arbitration are made to the High Court

ü  A fundamental underlying principle to both forms of arbitration is that the arbitration awards are supposed to be bind and final especially on dispute of fact-the so-called doctrine of finality of litigation.

ü  The LA stipulates one of its objects as the “the expeditious resolution of disputes and unfair labour practices”. This underlying principle has significant implications on when a party will be allowed to appeal or make a review application against an awrd, resulting in strict tests on the grounds of review or appeal.

Review of awards under Voluntary arbitration:

ü  Application for review in relation to awards in voluntary arbitration must be made to the High Court within 3months from date of the award.

ü  The grounds of such an application are distinct from those of an ordinary review application under s27 of the high court. The grounds must strictly be in terms of art.34AA (Arbitration Act). The grounds for review of an award under art.34 are:

·  Incapacity of a party to the arbitration agreement-e.g. An insolvent, alien or mental patient or that agreement is not valid under the law to which the parties have subjected it, or failing an indication on the law of Zimbabwe

·  Inadequate notice to a party or that a party was unfairly prevented from presenting their case. In Minister of local governance and another v Madondo S-152-02, the applicant’s practioner failed to attend a meeting called by the arbitrator and submit documentation in the period prescribed by the High Court leading to the arbitrator making an adverse award holding that the applicant was not unfairly treated in presenting the evidence.

·  The arbitrator exceed their powers under the terms of reference for arbitration or the award in ultra vires the law to which the parties subjected arbitration to, or that the arbitrator was not properly appointed.

·  The subject matter of the dispute is incapable of settlement by arbitration in Zimbabwean law

·  The composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the Model law

·  The award is in conflict with the public policy. This has been defined under art 34(5) to mean that making of the award is induced or affected by fraud corruption or breach of rules of natural justice, including bias. The courts have strongly emphasised that the doctrine of finality of litigation means that the grounds of “public policy” is to be read very strictly and respectively, such that the party who alleges it has “formidable onus”-Beazley No v Kabel &Anor S-22-03

And ZESA v Maposa 1999(2) ZLR 452 (S)

Grounds and procedure for appeal under compulsory arbitration:

ü  A party aggrieved by an award made under compulsory arbitration in terms of the LA may appeal to the Labour court not later than 14 days from the date the appellant became aware of the award under s 6(3)(4) of S.I 217 of 2003.Such appeal may only be “on a question of law” under s 98 (10) LA

Dispute Settlement Under Employment Codes:

Besides disciplinary processes, employment codes also provide grievance procedures.

Where there is a registered employment and grievance code, which covers the grievance in question, workers are required to comply with such procedures, before seeking alternative dispute settlement methods

Where a grievance is determined in terms of the employment code and the employee is still unhappy she/he may appeal to the labour Court in terms of s92D LA

RATIONALE OF HAVING A SPECIALISED SYSTEM TO HANDLE LABOUR RELATIONS

Labour legislation has been constantly undergoing reform and it continues to do so. Some of the reasons for these reforms are as follows:

ü  Non conformity to international instruments

ü  Too complicated for ordinary employers and employees

ü  Operates slowly

ü  Regulated by too many disparate statutes

ü  Labour law must address the question of fairness as compared to lawfulness

Of late, Zimbabwe has witnessed the introduction of a specialist labour system and the following justifications can be raised to support the move.

ü  A specialist person has more value. He is dealing with the same issue at all times.

ü  He has the expert knowledge about the subject matter

ü  The previous system was too generalised. All cases were dealt with in the same law courts e.g. criminal cases, labour cases, company law cases, etc, the practioners in the courts were therefore jacks of all trades: masters of none.

ü  Because so many cases are appearing on the same roaster, there is clogging of the court role. Due to that there is backlog of cases

ü  The earlier system was bureaucratic and matters took long to finalise

ü  In a specilialised labour court, you are dealing only with labour cases. These are dealt in with people who are experts in labour law, and who are therefore able to expedite the finalisation of the cases