DISPUTE RESOLUTION MECHANISMS, WITH SPECIAL EMPHASIS ON ARBITRATION AND APPEAL MECHANISMS

BY HON. JOHNLIFE.T. MAWIRE

(ARBITRATOR AND LABOUR LAW CONSULTANT)

Paper presented at the Institute of People Management Labour Briefing.

Rainbow Towers, Harare18 November 2009&

Bulawayo Rainbow20 November 2009

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Preface

This presentation is adapted from the paper I presented at an ILO Workshop for newly appointed arbitrators in November 2007.

The opinions expressed in this paper are entirely mine, except where otherwise indicated. It is my hope that the presentation will assist in opening up avenues for further debate on the evidently fast- developing arbitration jurisprudence in Zimbabwe.

I thank you all.

Johnlife Tungamirai Mawire

Harare 15 November 2009.

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LABOUR ARBITRATION LAW IN ZIMBABWE1

INTRODUCTION

The concepts of conciliation and arbitration have been on our statute books for a long time now.2 Their existence was however not supported by comprehensive substantive and procedural provisions until the 2002 amendments to the Labour Act.3 As a result, officers ended up taking the easier route of making decisions as they deemed fit.With the continued assistance of the ILO, the social partners finally established the current system of conciliation and arbitration in more concrete and elaborate form.4 Parliament also acknowledged the comprehensive consultations by the Ministry of Public Service Labour and Social Welfare regarding the amendments. The Parliamentary Portfolio Committee on Public Service, Labour and Social Welfare also supported the new labour dispute resolution regime. In its Report on the Labour Relations Amendment Bill, No. 19 0f 2001 presented to the House in its Third Session of the Fifth Parliament, the Committee said that:

“Your Committee observed with great caution the attempt by the Ministry to guarantee some possible standards of job security, an impartial, prompt and progressive dispute resolution process. The initial dispute resolution processes, standards and regulations had massive flaws, which were skewed in favour of employers. The current inclusion of some improved dispute resolution procedures is a welcome gesture, which goes a long way in setting the foundation for effective future debates on the matter.” 5

That they were meant to be cardinal forms of dispute resolution was entrenched in 2002 through amendments to sections 74 and 82 to the Labour Act. Section 74 was amended to include “procedures for dealing with disputes within an undertaking.” Once such procedures were agreed to and incorporated in the Collective 1 This paper looks at arbitration jurisprudence generally and then provides areas for discussion under remuneration disputes and codes of conduct disputes (arbitration of disciplinary and grievance handling issues.)2 For an analysis of the historical development of the law, see Munyaradzi Gwisai: LABOUR AND EMPLOYMENT LAW IN ZIMBABWE: Relations of Work under Neo-colonial Capitalism: Zimbabwe Labour Centre, Harare, 2006. Pages 266-268.3 This is with respect generally to Compulsory Arbitration. For Voluntary Arbitration, this was through the 1996 repeal of the Arbitration Act [Chapter 12] and the adoption of the United Nations Commission on International Trade Law (UNCITRAL) Model Law, with modifications as a Schedule to the Arbitration Act of 1996. Arbitration was said to have numerous advantages over litigation. 4 The current conciliation and arbitration provisions in the Labour Act were largely drafted by the ILO under the ILO/Swiss Project in 2001 and communicated as PROPOSED AMENDMENTS TO THE LABOUR RELATIONS AMENDMENT BILL, 2001 FOR CONSIDERATION BY THE SOCIAL PARTNERS.5 See Clause 2.4.1 of the Report under Clause 4 on ‘Basic Standards and Dispute resolution.’ Contained in the Hansard, 18 December 2002 pg 2149. The only rider to the acknowledgment was that the Committee lamented the absence of a Labour Appeals Court.

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Bargaining Agreement, it then followed that the procedure would have to be religiously applied. In terms of the amendment to section 82,

“ If a registered collective bargaining agreement provides a procedure for the resolution of any category of dispute that procedure is the exclusive procedure for the determination of disputes within that category.”

The emphasis on conciliation and arbitration is littered throughout the Act, but of note are the following provisions:

1. Section 93 provides for conciliation and arbitration in detail

2. Section 63 which empower Designated Agents to conciliate and arbitrate with similar powers as Labour Officers.

3. Section 98 on compulsory arbitration confirms that the Arbitration Act [Chapter 7:15] is also partially applicable to compulsory arbitration.

4. In terms of section 98, an Arbitral Award is meant to be final and binding on the parties to the dispute, with an appeal being possible only on points of law. Further, an award in registrable for enforcement purposes

5. In terms of section 101 of the Act, where an employment council refuses to approve a works council code, the works council may refer the matter to a Labour Officer whose determination shall be final unless the parties agree to refer it to voluntary arbitration.

6. In terms of section 104, no strike can be legal unless inter alia;

“ an attempt has been made to conciliate the dispute and a certificate of no settlement has been issued”6

Apart from Parliament and the Executive, the Judiciary has added its weight to the advocacy for incorporation of the ADRS as part of our Labour Law. Justice Sandura in the case of Catering Employers Association v The Zimbabwe Hotel and Catering Workers Union, SC 112/2001 quoted with approval a South African judge ‘s sentiments that;

“When the parties agree to refer a matter to arbitration, unless the submission provides otherwise, they implicitly, if not explicitly……….abandon the right to litigate in courts of law and accept that they will be finally bound by the decision of the

6 See generally Zimbabwe Graphical Workers Union v (1) Federation of Master Printers of Zimbabwe (2) Minister of Public Service, Labour and Social Welfare SC 25/07

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arbitrator. There are many reasons for commending such a course, and especially so in the labour field where it is frequently advantageous to all the parties and in the interests of good labour relations to have a binding decision speedily and finally made. In my opinion the courts should in no way discourage parties from resorting to arbitration and should deprecate conduct by a party to an arbitration who does not do all in his power to implement the decision of the arbitrator promptly and in good faith.”

It can therefore safely be concluded that Zimbabwe as a country has accepted arbitration as a part of its Labour Law.As the brief of this paper was to analyse both the Arbitration Act (AA) and the Labour Act (LA) I shall proceed to deal with the key provisions of the two Acts with respect to both voluntary and compulsory arbitration. The intention is to restate the law in simple terms and to provide similarities and differences. Where necessary, case law will be provided. Similarly where the law is not clear, recommendations on the possible progressive approach to be adopted by practitioners will be given.

Application of AA and LA to Labour Disputes.

Both the AA and the LA apply to Labour disputes. The AA and the Model Law as modified by the AA apply to all disputes in Zimbabwe that the parties have agreed to submit to arbitration except those that are excluded expressly by the Act. Those excluded include an agreement that is contrary to public policy, a dispute which, in terms of any law, may not be determined by arbitration and a criminal case. 7

Where an enactment provides for the determination of any matter by arbitration, the provisions of that enactment, to the extent that they are inconsistent with the AA, shall prevail.8 With respect to the LA, it follows that where it provides for certain issues which contradict the AA, the provisions in the LA take precedence. The position is made clearer by Section 98 of the LA which provides that: -

“Subject to this section, the Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration”

For the avoidance of doubt, voluntary arbitration disputes are covered by the AA in toto.

Appointment of Arbitrators

7 See Sections 3, 4 (1) and 4 (2) of the AA.8 See Section 5(2) of the AA.

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In voluntary arbitration cases, the parties are free to agree on a procedure of appointing the arbitrator or arbitrators (of whatever nationality). If there is no agreement, then for a tripartite panel, each party shall appoint one arbitrator9, and the two arbitrators thus appointed shall appoint the third arbitrator. If a party fails to appoint the arbitrator within 30 days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment shall be done, upon request of a party, by the High Court.10

The High Court is given powers to appoint a single arbitrator as well where there is failure by the parties to agree.11 The same Court is given powers to determine any dispute regarding failure by any party to act according to agreed procedures on appointment and its decision shall be subject to no appeal.12

For compulsory arbitration under the LA, it is the Conciliator who, upon consulting any Labour Officer senior to him and to whom he is responsible in the area in which he attempted to settle the dispute refers the matter to an arbitrator13 from the list appointed by the Minister14, in consultation with the Senior President of the Labour Court and the appropriate Advisory Council if any appointed in terms of the LA.15 The Conciliator, in terms of Section 93 (5) of the LA refers disputes to compulsory arbitration only:

(a) disputes of interest and the parties are engaged in an essential service or

(b) with the agreement of the parties or(c) if the dispute is a dispute of right.

For the avoidance of doubt, the Conciliator cannot refer a dispute of interest in a non-essential service for compulsory arbitration without the agreement of the parties. If a Certificate of No Settlement is issued and the parties to such a dispute are not in agreement that the matter be referred to compulsory arbitration, then it may be resolved through collective job action. Further compulsory arbitration is not left for disputes of interest in the essential services 9 The two arbitrators shall have equal jurisdiction. Further, they shall not act as the parties’ representatives, but shall be part of the tribunal. There is a temptation to please the appointing authority. This must be avoided at all cost.10 See Articles 11(1), 11(2) and 11(3) of the Model Law. In practice however, the parties have tended to recommend the third Arbitrator or to appoint him themselves.11 Otherwise the parties are free to determine the number of arbitrators, failing which the number shall be three. The number is reduced to one if a party has a place of business, principle business or place of habitual residence in Zimbabwe. (Article 10) 12 See Clause 11(4) and 11(5) of the Model Law.13 This includes Designated Agents who have similar powers with Labour Officers in terms of Section 63 of the AA. Further this applies equally to appointment of more than one arbitrator to determine one case together. In terms of the Interpretation Act [Chapter 1:01] words in an enactment used in the singular shall include the plural.14 See section 28 of Interpretation Act supra. The Minister can suspend, remove, reappoint or reinstate an arbitrator or appoint another person in his stead or to act in his stead.15 See Sections 93(5) and 98(5) and (6) of the LA. The Arbitrators may be Labour Officers, Designated Agents or any other person whom the Minister considers to be experienced or qualified in arbitration.

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only like is the norm under ILO jurisprudence.16 In Zimbabwe, compulsory arbitration applies even to disputes of right as well and to disputes of interest in non-essential services which may be declared essential services by the Minister if a strike in the non-essential sector, service industry or enterprise persists to the point that lives, personal safety or health of the whole or part of the population is endangered!17

The compulsory arbitrator may also be ceased with the matter through reference by the Labour Court.18 The LA obliges the conciliator and the Labour Court to afford the parties a reasonable opportunity of making representations on the matter before referring the matter.19 This is so that the parties are not taken unawares. In practice however, some parties have taken this opportunity to refuse to appear before fee-charging arbitrators. Arbitrators should deal with this issue as a preliminary point if their jurisdiction is challenged on the basis that the parties were not consulted by the conciliator prior to the referral of the matters to them.Otherwise the only grounds for challenging the appointment of an arbitrator are the existence of circumstances likely to give rise to justifiable doubts as to his impartiality or independence, or if, in appropriate cases, he does not possess the qualifications agreed to by the parties. The arbitrator must mero motu disclose any such circumstances to the parties. Unless the challenged Arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge.20 In the case of voluntary arbitration, the challenged arbitrator’s ruling is challengeable in the High Court, while under compulsory arbitration, the ruling is appeallable to the Labour Court on points of law.The High Court’s decision will be final.21 In both situations, pending the decision of the court or the arbitrator, as the case may be, the arbitrator may proceed to issue an award.22

If the arbitrator is incapacitated from proceeding by reason of a challenge, agreement of parties or becomes de facto or de jure unable to perform the functions of his office, fails to act without undue delay or withdraws from office, a substitute arbitrator may be appointed.23 In that event, unless otherwise agreed by the parties:-

16 See Freedom Of Association Digest of Decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO. (Sections 515-521). The Committee’s stance is that the imposition of compulsory arbitration is only acceptable in cases of strikes in essential services in the strict sense of the term or in cases of acute national crisis.17 See S.I. 137 of 2003, Section 3.18 Section 89(1)(d) of the LA19 See section 98 of the LA.20 See Articles 12 and 13.21 See Article 13(3)22 Article 13(3) supra for Voluntary Arbitration and section 92E (2) of the LA for compulsory arbitration.23 See Articles 14 and 15 of the AA. The need for appointment of substitute arbitrators has been very evident in the Ministry of Labour because of high turn over.

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(a) where the sole or the presiding arbitrator is replaced, any hearings previously held shall be repeated.

(b)Where an arbitrator other than a sole or a presiding arbitrator is replaced, any hearings previously held may be repeated at the discretion of the arbitral tribunal.24

Further, unless otherwise agreed by the parties an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this article is not invalid solely because there has been a change in the composition of the tribunal.25

Determination of terms of reference

Unlike in voluntary arbitration where parties determine the terms of reference of the arbitration through an arbitration agreement,26

under compulsory arbitration, the Labour Court or the Labour officer, as the case may be, shall determine the arbitrator’s terms of reference after consultation with the parties to the dispute.27 As observed earlier, he should afford the parties a reasonable opportunity of making representations on the matter.28 Where there is a dispute as to the terms of reference, the arbitrator must refer the matter back to the referring officer, unless the parties agree that the arbitrator makes a decision on the terms, since the LA is clear that it is the Conciliator who has the jurisdiction to determine the terms. It is advisable for the Conciliator to solicit written agreements from the parties on the terms of reference or separate proposals by the parties, from which he can make a decision. It would appear that a Conciliator or the Labour Court’s decision on the terms of reference is final.

Procedural Issues.

The AA is very detailed when it comes to procedural issues. The underlying principle is that the parties themselves must agree on these issues and in the absence of an agreement, the arbitrator shall decide. These include Place of Arbitration,29 language to be used in the proceedings,30 exchange of statement of claim and defence31 and appointment of experts.32

24 See Article 15(2)25 See Article 15(3). An example would be where the Arbitrator would have made an award on reinstatement and damages as alternative to reinstatement. A substitute Arbitrator may then be appointed at the point of assessing the damages.26 See Article 7 of the Model Law. The agreement may be in the form of a reference in contract to a document containing an arbitration clause provided that the contract is in writing and the reference is such as to make that clause part of the contract.27 See ZESA V ZESA Employees SC. 106/0428 See Sections 98(3) and (4) of the LA.29 Article 2030 Article 2231 Article 2332 Article 26.

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The LA is silent on these issues. This means that the AA applies instead. Some of the issues that are relevant include the following: -

a) That the arbitrator may, unless otherwise agreed by the parties, order interim measures of protection, grant an interdict or other interim order33 or order the parties to make a deposit in respect of fees and costs.34

b) That if, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitral award on agreed terms.35

c) That the parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.36

d) That unless the parties decide otherwise, the arbitrator may decide whether to hold oral hearings or to determine the matter on record.37

e) That all statements, documents or other information supplied to the arbitral tribunal by one party shall be communicated to the other party38

f) That the parties may appear or act in person or may be represented by any other person of their choice.39

g) That the arbitrator may issue a default judgment.40

Arbitrators powers

In terms of the LA, when hearing and determining labour disputes, the Arbitrator shall have the same powers as the Labour Court41. The Labour Court rules, which govern its operations, have to be analysed closely to confirm which provisions take precedence over the AA and also those provisions not applicable to arbitrators.

33 Article 17 (1) and (2). For compulsory arbitration though, the Arbitrator may issue an interim award just as the Labour Court can issue an interim decision.34 Article 17(2)35 Article 3036 Article 1837 Article 24(1)38 Article 24(3)39 Article 24(4). For compulsory arbitration, the law appears hazy. Arguments for freedom of representation are justified on the basis that the LA does not specifically regulate representation before arbitrators but before the Labour Officer (SI 217/2003), the Labour Court (Section 92 of LA) and employers (SI 15 of 2006). Arguments for limitation of representation to registered legal practitioners, employees, workers’ committees, trade unions and employers’ representatives are justified on the basis that the intention of the legislature was to so limit. Further, the arbitrator has same powers as the Labour Court when hearing and determining disputes. This debate is still to reach the Supreme Court. In the meantime, Arbitrators need to be guided by agreement or alternatively objections by parties. The author takes the view that in the event of objections to representations by consultants, a decision has to be made based on the latter argument, restrictive as it may appear. 40 Article 25. Similar powers are extended to compulsory arbitrators in terms of Rule 30 of the Labour Court Rules.41 Section 98(9) of the LA

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Determination of Costs.

For voluntary arbitration, the issue of costs and expenses of an arbitration, including the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal, and other expenses related to the arbitration, shall, unless otherwise agreed by the parties, be as fixed and allocated by the arbitral tribunal.42 These issues are normally covered in the arbitration agreement. Where the voluntary arbitrator does not cover these issues, in the absence of an agreement by the parties, each party shall be responsible for his own legal and other expenses and for an equal share of the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration.43 Under the LA however, in referring a dispute to compulsory arbitration by a person other than a Labour Officer or a Designated Agent for the employment council which is registered to represent the undertaking or industry to which the parties belong, the Labour Court or Labour Officer, as the case may be, should determine the share of costs of the arbitration to be borne by each party.44 Further, where a party to a dispute referred to compulsory arbitration is made up of more than one employer, employee, employers’ organisation, or trade union, the costs of the arbitration shall be paid in the proportions agreed upon by the constituent members of the party or, failing agreement, in the proportions determined by the arbitrator or arbitrators.45 Where there are disputes as to the determination of costs, the arbitrator must resolve the dispute as a preliminary issue or refer it to the referring authority if the issue was not canvassed and the parties are not agreed on apportionment of the costs. The issue of what costs and the factors to take into account is covered under Rule 32 of the Labour Court rules. These include that the costs may be awarded irrespective of the judgment in the cause, may be made costs in the cause, may be reserved to be dealt with at the conclusion of the action, may be denied or the authority may determine that each party bears its own costs. Even a party not represented by a legal practitioner may be awarded his or her disbursements in addition to necessary expenses. The disbursements and necessary expenses are not explained and it will be the discretion of the authority to determine the equitable costs in the circumstances.

Interest

In terms of the AA, unless agreed by the parties,

42 Article 31(5)(a)43 Article 31(5)(b)44 Section 98(7) of the LA. It is important to note that the authority determines the share of arbitration costs and not the exact quantum. This may be determined in percentages of the total arbitration costs. Note must further be taken that this does not cover legal costs which issue must be determined by the arbitrator. 45 Section 98(8) of the AA.

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(a) an arbitral tribunal may award interest at such rate, on such sum and for such period as may be specified in the award.46

(b) Where the award does not specify otherwise, a sum directed to be paid by the award shall carry interest from the date of the award up to the date of payment at the same rate as a judgment date.47

The LA is silent on this issue. In practice, most arbitrators have not made any awards incorporating interest and should in future be guided by the AA.

Finality of and recourse against award In terms of the AA, an arbitral award shall be final and binding, with the only recourse against the award being an application to the High Court for the award to be set aside on applicable grounds.48 The High Court does not have review powers.

Powers of the High Court

In the Zimbabwe Hotel and Catering Case, the question of the grounds on which the High Court may interfere with an arbitral award was discussed. The court rejected the suggestion that in addition to the grounds set up in Article 34(2) of the Model Law, an arbitral award could be set aside by the High Court on review on the grounds set out in section 27 of the High Court Act[Chapter 7:06]. The Court reiterated what it had said in Zimbabwe Electricity Supply Authority v Maphosa that Article 34(2) of the Model Law sets out the sole grounds on which an arbitral award may be set aside by the High Court.

Other ancillary provisions are that, unless agreed otherwise by the parties: -

A party, with notice to the other party, may request the arbitrator to correct in the award any errors in computation, any clerical or typographical errors or any errors of similar nature49 or the tribunal may correct such errors on its own initiative.50

46 This includes inflation-adjusted interest, especially because of the inflationary environment Zimbabwe is currently in. The Central Statistical Office has since provided a formula for the inflation-adjusted calculations.47 This is currently 30% per annum in terms of the Prescribed Rate of Interest Act [Chapter 8:10]48 See Article 34. The grounds are with respect to incapacity of a party, lack of notice of appointment of arbitrator or of the proceedings, inability to be present, scope of dispute, composition of tribunal, subject matter not being legally arbitrable in Zimbabwe and award being in conflict with the public policy of Zimbabwe.49 Article 33(1)(a)50 Article 33(2)

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A party, if so agreed by the parties, may request the arbitrator to give an interpretation of a specific point or part of the award.51

Unless agreed to the contrary, a party may, with notice to the other party, request the arbitrator to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.52

In terms of the LA, any party aggrieved by the decision of a compulsory arbitrator can appeal to the Labour Court on a point of law.53 There are cases where a gross misdirection on facts can be misdirection in law in which case a party can be heard if it appeals on this point of fact which becomes a point of law.54 It is clear that the Labour Court has the same review powers as the High Court55

but it is doubtful whether the Labour Court would have review powers against an arbitration award, since the High Court does not have review powers against an award and since the awards are meant to be binding. If the legislature wanted the Labour Court to be vested with such powers, it would simply have provided so.

Enforceability of award

For compulsory arbitration, any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of the LA to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.56

Where an arbitral award has been registered in terms of the LA it shall have the effect, for purposes of enforcement, of a civil judgment of the appropriate court.57

For voluntary arbitration, the award is binding and enforceable with the High Court, although the Court may refuse recognition or enforcement on grounds generally similar to those on which it may set aside an award.58

Some important cases (Case Law)

51 Article 33(1) (b)52 Article 33(3)53 Section 98(10) of the LA. For the difference between a point of fact and a point of law, See generally

-Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217-Mpumela v Berger Paints (Pvt) Ltd 1999 920 ZLR 146-Joseph Dondo v National Breweries SC 69/ 05

54 -SAPES Trust (Pvt) Ltd v Dorcas Mangena SC 114/0455 Section 98(9) of the LA56 Section 98(14) of the LA.57 Section 98(15) of the LA.58 See Articles 35 and 36 of the Model law.

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The courts have made some interesting decisions which have a bearing on arbitrators’ functions. The following are of great significance: -

a) An arbitration clause entered into by parties is binding. A party cannot refer a matter for compulsory arbitration where there is a voluntary arbitration clause agreed to by the parties.59

b) Generally, a point of law may be pleaded at any time of the proceedings, unlike introduction of new evidence.60

c) In review proceedings, the citing of the decision maker or the body whose decision is being challenged is very important. The authority can if it so wishes comment on the matter without defending its decision on merits.61

d) Where the parties have appointed their arbitrator, the courts are very reluctant to interfere with arbitration proceedings. However, the court may interfere where the arbitrator has misconstrued proceedings. Further, ordinarily all proceedings before an arbitrator must be conducted in the presence of both parties to the dispute and it will be a breach of the audi alteram partem rule for evidence to be heard from one party without the other being present. The parties to a dispute are however free to agree to any procedure which they think is appropriate to the settlement of their dispute.62

e) In terms of section 98 of the LA, the parties have to be given an opportunity to be heard before a matter is referred for compulsory arbitration. The referral order should clearly set out the terms of reference and identify the authority to which it is referring the matter63

f) In cases of an order of reinstatement, this must be accompanied by an alternative order of payment of damages in lieu of reinstatement which damages must be quantified in figures for enforcement purposes.64

g) Res Judicata. Where the dispute involves two actions between the same parties, concerning the same subject matter and founded on upon the same cause of complaint, the defence of res judicata can be raised, which means that case can be dismissed.65

h) Casualisation and Contractualisation of labour must be discouraged66

59 Edgars Stores Managers Association v Edgars Stores Limited SC 103/04.60 Interfresh Limited v Ryan Dzapata SC 58/05 and Catherine Mupotola v SADC SC6/0761 See -ERICOM Communications (Pvt) Ltd v CASWUZ HC 10362/04 -Blue Ribbon Foods Ltd v Francis Dube N.O. and Allen Gonyora SC 133/9362 FSI HOLDINGS Ltd v RIO TINTO ZIMBABWE Ltd & Anor. 1996 (1) ZLR 356(H)63 See ZESA v ZESA employees SC 106/0464 There is a plethora of cases following on the Kuda Madyara Case but the most illustrative ones are the cases of EMSI PLASTIC (Pvt) Ltd v Isaac Zvirevo LC/H/47/2007 and First Mutual Life Limited v Jackson Muzivi SC 9/0765 Hilda Muzika v Phoebe Kamhunga SC 20/0566 See - Zim. Bata Shoe Company v Zim. Bata Shoe Company Workers Committee LC/MD/24/2005

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ISSUES FOR DISCUSSION

1. Remuneration disputes

(a) Collective disputesi. Quantum and structure (factors influencing), e.g.

productivity versus PDL.ii. Negotiation Frequency, timing (backpays)iii. Exemptionsiv. Retrenchment and anti-retrenchment measuresv. Collective job actionvi. Allowancesvii. Enforcementviii. Remuneration equity

(b) Individual Disputes

i. Contracts of employment gaps and ambiguities

ii. Delays/failure to review or increase salaries.iii. Failure to pay agreed salaries or allowances.iv. Unjustified differences in salary levels

(unscientific grading)v. Unilateral variation of conditions of servicevi. Overtime disputes.

2. Disciplinary and Grievance Handling Disputes

a) Registered codes cases versus S.I. 15/2006 cases.b) Constructive dismissalc) Legitimate expectationd) Damages in lieu of reinstatement

3. Appeal Mechanisms

a) Time framesb) Grounds of appealc) Point of law v point of factd) Determination on recorde) Effect of appeal

CONCLUSION

It is clearly evident from the above that the ADRS jurisprudence is developing very fast. What is worrying though is that arbitration is becoming more technical than initially intended. It

- Rachel Kudzinga & 20 Others v Eastern Textiles (Pvt) Ltd LC/MC/02/2007

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is therefore incumbent upon arbitrators to discourage this unfortunate development which threatens to derail not only equity in labour matters but also the much-needed access to justice. Labour law is dynamic. The decisions witnessed so far dictate that the social partners be proactive and move fast to craft reforms to the relevant legal instruments, including the LA. The promulgation of codes of good practice is long overdue. The establishment of a self-regulatory association for labour arbitrators is similarly long overdue.Otherwise all stakeholders must continue to support the pronounced decision by Parliament, the Executive and the Judiciary of welcoming ADRs in labour matters if we are to avoid a slide back into the wilderness of adversarial and costly litigation.

I so submit.

HON. JOHNLIFE TUNGAMIRAL MAWIRE ARBITRATOR & LABOUR LAW CONSULTANT

Principal References

Principal Legislation

-Interpretation Act [Chapter 1]-Labour Act [Chapter 28:01].-Labour Amendment Act No. 17 of 2002.-Labour Amendment Act No. 7 of 2005.-Arbitration Act [Chapter 7:15]-Prescribed Rate of Interest Act [Chapter 8:10]

Subsidiary Legislation

-Statutory Instrument 59 of 2006 -Statutory Instrument 217 of 2003 -Statutory Instrument 15 of 2006 -Statutory Instrument 59 of 2006

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Texts

-Guy Standing Et al: Restructuring the Labour Market: The South African Challenge. ILO, Geneva, 1996.-Gwisai M, LABOUR and EMPLOYMENT AND LAW IN ZIMBABWE: Relations of Work under Neo-Colonial Capitalism: Zimbabwe Labour Centre and Institute of Commercial Law, UZ, 2006.-Hansard: Wednesday, 18 December 2002.-ILO Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, ILO Geneva, 1996 4th (Revised) Ed.-Marsh A : Concise Encyclopedia of Industrial Relations Gower Press, 1979.

-The K. Makamure Labour Law Journal, Vol.1 2004, Faculty of Law,UZ.

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