MALABA
CJ:
At
the end of hearing argument for both parties, the Constitutional
Court (“the Court”), with the consent of the parties, dismissed
the application with each party bearing its own costs.
It
was indicated that reasons for the decision would follow in due
course. These are they.
This
is a purported referral of constitutional questions by the Labour
Court (“the court a quo”) in terms of section 175(4) of the
Constitution of Zimbabwe Amendment (No. 20) Act, 2013.
Section
175(4) provides that if a constitutional matter arises in any
proceedings before a court, the person presiding over that court may,
and if so requested by any party to the proceedings must, refer the
matter to the Court unless he or she considers that the request is
merely frivolous or vexatious.
Some
time during the period between 21 July 2015 and 14 August 2015, the
applicant terminated on notice the contracts of employment of
seventeen of its employees.
Through
the Automotive and Allied Workers Union of Zimbabwe, the aggrieved
former employees demanded from the applicant payment of retrenchment
packages in terms of section 12C(2) of the Labour Act [Chapter 28:02]
(“the Act”).
Section
12C(2) of the Act provides that, unless better terms are agreed
between the employer and the employees concerned or their
representatives, a package (“the minimum retrenchment package”)
of not less than one month's salary or wages for every two years of
service as an employee (or the equivalent lesser proportion of one
month's salary or wages for a lesser period of service) shall be
paid by the employer as compensation for loss of employment (whether
the loss of employment is occasioned by retrenchment or by virtue of
termination of employment pursuant to section 12(4a) (a), (b) or
(c)), by no later than the date when the notice of termination of
employment takes effect.
The
applicant did not respond to the request.
The
aggrieved former employees approached the National Employment Council
for the Motor Industry with a complaint that the applicant had failed
to pay their retrenchment packages and their long service awards in
line with company policy.
On
22 September 2015 the National Employment Council for the Motor
Industry requested the respondent, a designated agent, to redress the
dispute.
On
12 October 2015 the aggrieved former employees filed a statement of
claim before the respondent, who at that point was referred to as
“the conciliator”.
The
aggrieved former employees claimed that, although their contracts of
employment had been terminated in terms of section 12(4)(a) of the
Act, the applicant had failed to pay their retrenchment packages
despite demands having been made to that effect. They jointly claimed
the sum of US$139,896.13, being the total of their various
retrenchment packages.
The
applicant opposed the claims.
It
stated that when it terminated the aggrieved former employees
contracts of employment on notice, it exercised its common law right
to do so following the Supreme Court decision in Nyamande and Anor v
Zuva Petroleum (Pvt) Ltd 2015 (2) ZLR 186 (SC).
The
applicant argued that section 12C(2) of the Act was unconstitutional,
as it took away its vested right. In that regard, the applicant
stated that the aggrieved former employees could not have made a
claim for packages that the applicant viewed to be illegal.
The
applicant indicated that it would seek to have the matter referred to
the Court for a determination of the question whether section 18 of
the Labour Amendment Act (No. 5) 2015 was constitutional.
Section
18 gave section 12C(2) of the Act retrospective effect.
In
view of that position the applicant stated that the respondent could
not grant the claim that its former employees sought.
A
designated agent exercising his or her jurisdiction in terms of the
Act would have no power to determine a constitutional matter.
The
disputes of rights that fall within his or her jurisdiction arise
from employment relationships. They are not constitutional matters.
The
applicant appreciated the fact that the constitutionality of section
12C(2) of the Act was not a matter the respondent had to concern
herself with.
It
accepted the fact that the dispute before the respondent was over the
quantum of the retrenchment packages payable to the former employees
in terms of section 12C(2) of the Act.
The
applicant did not raise the question of the constitutionality of
section 12C(2) of the Act before the court a quo.
The
respondent found that, since no better terms had been agreed between
the applicant and its former employees, the applicant had to pay the
minimum retrenchment packages as stipulated in section 12C(2) of the
Act.
Although
contained in a decision dated 8 April 2016, the respondent “ordered”
the applicant to pay its former employees the various amounts that
she had specified as retrenchment packages for each of them by 31
July 2016.
It
is important to emphasise the fact that the respondent conducted a
hearing of the matters raised by the parties in the proceedings
before her and produced a determination of those matters.
On
5 July 2016 the respondent applied to the court a quo on affidavit,
purportedly acting in terms of section 93(5a) of the Act. She prayed
that her order against the applicant to pay its former employees
retrenchment packages be confirmed.
In
opposition, the applicant challenged the constitutionality of section
93(5a) and section 93(5b) of the Act, alleging that the provisions
violated its rights to equal protection of the law and to
administrative justice, as contained in sections 56(1) and 68(1) of
the Constitution respectively.
The
applicant's case was that by virtue of section 93(5a) and section
93(5b) of the Act, the designated agent becomes an active litigant in
a matter where the aggrieved former employees stand to benefit.
The
applicant contended that allowing the designated agent to institute
process on behalf of the opposing party is discriminatory in effect.
The
argument was that the aggrieved employees were accorded, directly or
indirectly, a privilege or advantage which the applicant did not
stand to enjoy.
The
applicant alleged that its right to equal benefit of the law, as
provided for in section 56(1) of the Constitution, had been violated.
The
applicant further contended that it would bear the costs of the
proceedings in the court a quo whilst the former employees would not
need to pay the same costs, as the designated agent's costs are
payable by the Government as her employer.
It
was further alleged that section 93(5a) and section 93(5b) of the Act
created a situation where the designated agent, who is expected to be
impartial, ends up descending into the arena and taking sides with
one of the parties.
In
this regard, it was alleged that section 93(5a) and section 93(5b) of
the Act violated the applicant's right to equal protection of the
law.
It
is for these reasons that the applicant requested that the matter be
referred to the Court for determination of the question whether or
not section 93(5a) and section 93(5b) of the Act violate its rights
to equal protection and benefit of the law and the right to
administrative justice, as protected by sections 56(1) and 68(1) of
the Constitution respectively.
The
applicant sought an order striking down section 93(5a) and section
93(5b) of the Act should the application be successful.
The
court a quo granted the request, stating that “the application”
was not frivolous or vexatious.
Section
93 of the Act provides as follows:
“93
Powers of labour officers
(1)
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.
(2)
If the dispute or unfair labour practice is settled by conciliation,
the labour officer shall record the settlement in writing.
(3)
If the dispute or unfair labour practice is not settled within thirty
days after the labour officer began to attempt to settle it under
subsection (1), the labour officer shall issue a certificate of no
settlement to the parties to the dispute or unfair labour practice.
(4)
The parties to a dispute or unfair labour practice may agree to
extend the period for conciliation of the dispute or unfair labour
practice referred to in subsection (3).
(5)
After a labour officer has issued a certificate of no settlement, the
labour officer, upon consulting any labour officer who is senior to
him or her and to whom he or she is responsible in the area in which
he or she attempted to settle the dispute or unfair labour practice —
(a)
shall refer the dispute to compulsory arbitration if the dispute is a
dispute of interest and the parties are engaged in an essential
service, and the provisions of section 98 shall apply to such
reference to compulsory arbitration; or
(b)
may, with the agreement of the parties, refer the dispute or unfair
labour practice to voluntary arbitration if the dispute is a dispute
of interest; or
(c)
may, if the dispute or unfair labour practice is a dispute of right,
make a ruling that, upon a finding on a balance of probabilities that
—
(i)
the employer or other person is guilty of an unfair labour practice;
or
(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 or 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
subsections (5a) and (5b) shall apply.
(5a)
A labour officer who makes a ruling and order in terms of subsection
(5)(c) shall as soon as practicable —
(a)
make an affidavit to that effect incorporating, referring to or
annexing thereto any evidence upon which he or she makes the draft
ruling and order; and
(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, together with the affidavit and a claim for the
costs of the application (which shall not exceed such amount as may
be prescribed), for an order directing the respondent by a certain
day (the 'restitution day') not being earlier than thirty days
from the date that the application is set down … for hearing (the
'return day' of the application) to do or pay what the labour
officer ordered under subsection (5)(c)(ii) and to pay the costs of
the application.
(5b)
If, on the return day of the application, the respondent makes no
appearance or, after a hearing, the Labour Court grants the
application for the order with or without amendment, the labour
officer concerned shall, if the respondent does not comply fully or
at all with the order by the restitution day, submit the order for
registration to whichever court would have had jurisdiction to make
such an order had the matter been determined by it, and thereupon the
order shall have effect, for purposes of enforcement, of a civil
judgment of the appropriate court.”
ISSUE
FOR DETERMINATION
The
sole issue for determination was whether there was a proper referral
of the matter to the Court by the court a quo.
The
Court found that the court a quo erred by referring a matter which
arose in proceedings that were improperly before it.
The
starting point is the construction of section 175(4) of the
Constitution.
THE
IMPORT OF SECTION 175(4) OF THE CONSTITUTION
Referrals
to the Court are made in terms of section 175(4) of the Constitution.
For ease of reference, the section provides as follows:
“(4)
If a constitutional matter arises in any proceedings before a court,
the person presiding over that court may and, if so requested by any
party to the proceedings must, refer the matter to the Constitutional
Court unless he or she considers the request is merely frivolous or
vexatious.” (the underlining is for emphasis)
The
case before the Court necessitates an explanation of the importance
of the phrase “in any proceedings before a court” as emphasised
above.
The
reason is that a proper interpretation of section 175(4) of the
Constitution leads to the conclusion that the proceedings in which a
constitutional matter arises in respect to which a request for
referral of the question to the Court is made would have to be
validly before the subordinate court.
In
Tsvangirai v Mugabe and Anor 2006 (1) ZLR 148 (S) the Supreme Court,
sitting as a Constitutional Court, considered the meaning of the
phrase “in any proceedings” as used in section 24(2) of the
former Constitution. At 158D-159A the court said:
“The
words 'in any proceedings in the High Court' mean proceedings
that have come to or have been instituted in the High Court. They are
proceedings that have found existence in the High Court, in the sense
that that court has been called upon, through a method prescribed by
law, to exercise the judicial functions of the State over the matter
in dispute between the parties and it is in control of the conduct
and progress of the proceedings.
The
word 'proceedings' has a wider meaning in s24(2) of the
Constitution than 'goings-on' in court.
There
are no proceedings without an action or case. Proceedings ordinarily
progress in steps. The word is, therefore, a general term, referring
to the action or application itself and the formal and significant
steps taken by the parties in compliance with procedures laid down by
the law for the purpose of arriving at a final judgment on the matter
in dispute.
There
are proceedings in being in the High Court from the moment an action
is commenced or an application made until termination of the matter
in dispute or withdrawal of the action or application. See Re
Appleton French & Scrafton Ltd [1905] 1 ChD 749 at 753; Mundy v
The Butterley Co Ltd [1932] 2 ChD 227 at 233; Muzuva v United
Bottlers (Pvt) Ltd 1994 (1) ZLR 217 at 219.
There
is, therefore, no need to limit the very general words of s24(2) of
the Constitution and say that the question as to the contravention of
the Declaration of Rights arises only when the court is actually
sitting.
The
words 'if in any proceedings in the High Court any question arises
as to the contravention of the Declaration of Rights' imply that
proceedings may take place in the High Court without any such
question arising.
In
this case, the proceedings commenced in the High Court on 12 April
2002 when the election petition was presented. The election petition,
as the special procedure required by the statute to be used, defined
the stages of the proceedings in the High Court in that it set out
the relief sought and the grounds for it. Until the question whether
the President was duly elected or not duly elected was determined,
the proceedings were pending in the High Court.”
The
ratio decidendi of the Tsvangirai case supra is that the action or
application by which proceedings are commenced before a court of law
must be a process in respect of which the law provides that it may be
used to bring the matters in dispute before the court concerned for
it to exercise its jurisdiction to hear and determine them.
The
Labour Court is a creature of statute. The nature, content and scope
of the court's jurisdiction are determined by reference to the
specific provisions of the statute creating the court. It would be
those provisions which confer on the court the necessary powers to
hear and determine the class of matters brought before it in
accordance with the prescribed procedure.
The
creating statute ordinarily prescribes a court's jurisdiction by
reference to subject matter and procedure for bringing the matters to
the court.
A
court can have and exercise jurisdiction over a matter prescribed by
statute as falling within its competence, provided the matter is
brought before it in accordance with the prescribed procedure.
Proceedings
in a court would be those formal steps that relate to a matter
falling within the jurisdiction of the court and brought before it in
accordance with the procedure prescribed for bringing such a matter
for hearing and determination.
Section
93(1) of the Act makes provision for conciliation.
It
is the statutorily compulsory method for the resolution of all
disputes and unfair labour practices referred to a labour officer.
The
adoption of compulsory conciliation as the procedure for the
resolution of disputes arising from employment relationships referred
to a labour officer underscores its importance. It is an expression
on the part of the Legislature of faith in conciliation as an
effective process for consensus–seeking as a first step before the
disputes become subjects of arbitration or adjudication.
In
terms of section 93(1) of the Act all disputes properly referred to a
labour officer must first be subjected to the process of conciliation
before they are referred to arbitration or adjudication, depending on
the nature of the dispute.
Although
the Act does not require a party to allege a cause of action, it is
necessary to allege a dispute within the jurisdiction of the labour
officer.
The
following jurisdictional facts must be asserted or must appear when
referring a dispute in terms of section 93(1) of the Act to a labour
officer –
(a)
there must be a dispute;
(b)
the dispute should have arisen within an employment relationship;
(c)
the dispute should fall within the powers of a labour officer;
(d)
the issue in dispute should not be subject to proceedings under the
employment code (s101(5), as read with s101(6) of the Act);
(e)
the parties should not be subject to an employment council with
jurisdiction. In other words, a designated agent should not be seized
with the dispute (section 633b) of the Act); and
(f)
the referral should be timeous (section 94(1) of the Act).
The
jurisdictional facts must actually exist. They cannot be created by
consent of the parties.
Employment
relationships are based on contracts. Conciliation is a process that
does not involve the use of power in the resolution of a dispute
between parties, as adjudication does. The purpose of the procedure
of conciliation is to afford the parties to the dispute the
opportunity to resolve the dispute by agreement. The settlement of
the dispute must be reached through voluntary participation in the
discussion and consideration of the matters in dispute with the
assistance of a third party.
Conciliation
enables the parties to be in control of the outcome of the dispute
resolution process.
It
ensures expeditious resolution of disputes relating to and arising
from employment relationships. It is an ideal objective method of
dispute resolution where the parties have no desire to talk to one
another or where the parties cannot find a solution to the dispute
themselves.
Compulsory
conciliation, provided for under section 93(1) of the Act, is based
on the presumption that the labour officers and the parties will
appreciate the obligation placed on them to act in accordance with
the procedure of conciliation.
The
parties are required to act in good faith and to do everything within
their capacities to resolve the dispute by agreement.
The
first duty of a labour officer in conciliation proceedings is to
attempt to resolve the dispute within thirty days after he or she
began to attempt to settle it. The labour officer must determine a
process to attempt to resolve the dispute. The process may include
mediation of the dispute, conducting a fact-finding exercise, and
making proposals to the parties on how the dispute may be resolved.
The
labour officer should, however, generally undertake the process of
fact finding and recommend proposed solutions to the parties in order
to guard against perceptions of bias.
A
conciliator should not judge.
The
labour officer is under an obligation to do all that can reasonably
be done by a conciliator to assist the parties to resolve the dispute
by agreement without imposing the solution on them. The parties
remain the masters of the process. The terms of any settlement must
remain the responsibility of the parties.
That
entails acquisition of the necessary skills in conducting
conciliation.
The
process of conciliation itself is largely dependent on the parties
willingness to settle. There must be evidence that the parties
engaged in serious and bona fide discussion of matters over which
they disagreed. There must be evidence that the labour officer
understood his or her role as a conciliator and actively exercised
his or her functions.
If
a labour officer engages in anything that is not conciliation, it is
a nullity.
The
Minister has power under section 127(2) of the Act to make rules
regulating the practice and procedure for the resolution of disputes
through conciliation.
A
labour officer engaged in conciliation must follow a systematic
approach in the process in seeking consensus between the parties on
the matters in dispute. It is important for the labour officer to
remember that under section 93(1) of the Act he or she has a duty to
attempt to resolve the dispute between the parties through
conciliation. That means that he or she must adopt measures which are
conducive to the resolution of the disputes through conciliation.
As
a statutory conciliator under section 93(1) of the Act, the labour
officer has the power to hold the parties in the conciliation process
for at least thirty days. It must be clear that within the thirty
days the labour officer has been engaging the parties in an attempt
to resolve the dispute through conciliation. During that period the
parties are expected to attend conciliation proceedings and
participate in the process by answering questions put to them by the
labour officer and giving the information he or she would have asked
for.
This
means the labour officer and the parties must prepare adequately for
the conciliation process.
Conciliation
is the statutorily prescribed method by which the labour officer must
attempt to settle the dispute referred to him or her in terms of
section 93(1) of the Act. The Act does not specify the acts the
labour officer has to do to facilitate the conciliation process. The
duty to attempt to settle the dispute through conciliation imposed on
the labour officer by section 93(1) of the Act is wide enough to be
interpreted to mean that it confers on the labour officer powers
which are necessary to enable him or her to discharge the duty
imposed on him or her.
The
duty on the labour officer to attempt to settle the dispute through
conciliation means that he or she is at large with regard to the
choice and use of the steps and procedures ordinarily associated with
the process of conciliation as a method of dispute resolution.
The
conciliation process which a labour officer may follow may be divided
into distinct steps. The following of the steps will depend on the
circumstances of the case. The overall process, however, usually
involves four broad stages. These are:
(i)
introduction;
(ii)
story-telling;
(iii)
dispute analysis; and
(iv)
problem solving.
The
labour officer must take time before commencement of the conciliation
process to have a preliminary understanding of the nature and
possible causes of the dispute between the parties.
The
duty imposed on the labour officer by section 93(1) of the Act is
premised on the fact of the existence of a dispute relating to or
arising from an employment relationship.
The
Labour Court may not adjudicate a different dispute from the one
which was conciliated by the labour officer.
The
reason is that no attempt to settle such a dispute through
conciliation would have been made.
The
requirement that the labour officer must be clear in his or her mind
of the nature of the dispute to be conciliated is important.
A
dismissal dispute, for example, cannot be referred to the labour
officer as an unfair labour practice and an attempt to resolve it
through conciliation made. The issue in dispute would be unfair
dismissal. It must be a dispute covered by the Act. A labour officer
would have no jurisdiction to attempt to settle a dispute not covered
by the Act through conciliation.
The
labour officer as conciliator must ensure that there are facilities
that can keep the parties in the dispute apart from each other in
separate rooms to give them the opportunity to let off steam. The
separation is important whether the parties are able to talk to each
other directly or not.
The
venue for the conciliation should be appropriate.
There
should be a single room large enough to comfortably seat the parties
and the conciliator in joint proceedings. There should also be
break-away rooms large enough to accommodate each party for
side-meetings. The rooms must be at a distance apart or well
insulated to ensure that parties do not overhear one another when in
side-meetings.
Throughout
the conciliation the labour officer should consider separating the
parties into side-meetings if he or she considers that a joint
meeting is not conducive to securing consensus.
Under
normal circumstances, the labour officer may commence the process by
having the parties in a joint meeting.
Choice
of the most effective procedure to be employed is an important aspect
of conciliation.
The
labour officer must choose procedures which would enable him or her
to resolve the dispute as quickly as is practical in the
circumstances without jeopardising fairness, effectiveness and
perceptions of independence.
It
is important for a labour officer who is involved in a statutorily
compulsory conciliation process to appreciate that the parties would
not have contributed to his or her appointment as the conciliator in
their dispute. He or she must therefore take time to introduce
himself or herself to the parties.
The
purpose of this step of introduction is for the labour officer as the
conciliator to begin to develop trust and rapport with the parties
and to deal with all essential preliminary matters.
The
labour officer must make the parties feel confident that he or she is
independent of them and has no interest in the matters in dispute.
The
side-meetings with each party at the initial stage of the
conciliation are very important.
After
introducing himself or herself to the party in the side-meeting, the
labour officer must explain the conciliation process to the party to
ensure that he or she or it has a basic understanding of the process.
In particular, the parties need to understand the difference between
conciliation as a consensus building process and adjudication
process.
The
parties need to understand that the labour officer will not impose
the outcome upon them. He or she must explain that his or her role is
primarily to help the parties reach a mutually acceptable agreement.
He
or she must lay down the ground rules for the conciliation process.
For
the conciliation process to be successful, the parties need to have
sufficient confidence in the labour officer to raise issues or to
make concessions. See National Union of Metalworkers of SA and Ors v
Cementation Africa Contracts (Pty) Ltd (1998) 19 ILJ 1208 (LC) at
para 21 (the “NUMSA” case).
During
the side-meetings the labour officer must endeavour to get as much
information from the parties as possible. He or she must let the
party give his or her or its side of the dispute in detail and probe
the party concerned to get the relevant information.
In
a conflict situation parties are usually eager to state their case.
The sooner that this opportunity is given and anger and emotion is
released the better for effective dispute resolution.
The
labour officer should thereafter invite each party to address him or
her on the dispute to be conciliated by stating as much about the
dispute as the party is comfortable to disclose at this stage. This
should include the background to the dispute, the issues that each
party considers to be in dispute and its position in each issue.
The
labour officer must try to use the effective inter-personal skills,
such as building rapport, listening, paraphrasing, summarising,
dealing with emotion including anger and threats, and helping people
save face. See Grogan “Labour Litigation And Dispute Resolution”
1ed Juta p113; Brand et al “Labour Dispute Resolution” 5ed Juta
pp122-123; and Darcy du Toit et al “Labour Relations Law A
Comprehensive Guide” 6ed LexisNexis pp117-146.
The
labour officer may use the side-meeting to promote the
settlement-seeking process.
He
or she may use the meeting to explore options, develop propositions,
and to challenge the parties.
Once
he or she has obtained information from one party on the matters in
dispute in a side meeting, the labour officer should move to the
other party and do the same.
He
or she may move from one party to the other extracting information
with which he or she confronts the parties in side-meetings until he
or she is satisfied that the parties can be brought together in a
joint-meeting.
In
the process of discussing matters in dispute in side-meetings, the
labour officer must ascertain from the party which information he or
she has been given is intended by the party to be strictly
confidential. He or she should ascertain what information can be
conveyed from one side meeting to another. He or she must obtain
clear authority in this regard before making disclosure from one
side-meeting to another.
Parties
are more likely to be prepared to disclose information to the labour
officer purely for purposes of resolving the dispute if they are
confident that the process is confidential.
The
process has to be confidential in order for the labour officer to be
able to assist the parties to resolve the dispute.
During
conciliation proceedings, the conciliator must assist the parties
obtain admissions of fact and of documents relevant to the dispute.
He
or she must assist the parties in holding any necessary inspections
or examinations and exchange reports or other useful and relevant
documents, if any.
If
further particulars pertaining to the dispute or unfair labour
practice are required, the conciliator should ensure that the parties
give these to each other and also share them with the conciliator.
Once
the labour officer has collected preliminary information from the
parties, he or she must analyse it to further understand the dispute.
He or she must seek to appreciate the underlying causes of the
dispute. He or she must be clear in mind as to what the real issues
between the parties are, the position of the parties on each issue,
and their expectations. He or she must ascertain the real fears,
concerns and interests underpinning the parties positions and
expectations.
Understanding
these matters is often the key to a resolution of a dispute.
At
the same time, it is important for the labour officer to ascertain
the value that the parties place on their positions and needs and
what priority they attach to each issue.
The
labour officer should then bring the parties together in a
joint-meeting where he or she goes through the analysis of the
dispute in the context of the information gathered from them.
The
analysis of the dispute is probably one of the most important steps
in conciliation.
If
the labour officer and the parties do not have a detailed
understanding of these aspects of the dispute, it is difficult to
break deadlocks creatively. What often happens instead is that the
parties and the conciliator become trapped in a superficial and
adversarial exchange of demands and concessions. Much conflict is
occasioned by misunderstanding and posturing. See Brand et al supra
at p127.
At
this stage the labour officer may challenge the parties to state what
best alternatives to a mutually agreed resolution of the dispute
there are.
It
is often only when the parties really appreciate what the real
prospects of a failure to settle a dispute may be that they realise
the limitations of their bargaining positions.
Confronting
the reality of adjudication frequently encourages parties to be more
flexible than initially indicated.
This
stage seeks to get to the essence of the dispute.
To
achieve this purpose, the labour officer should ask the parties
probing and testing questions to establish the causes, positions,
expectations, needs, values and priorities which the parties place on
the position.
The
labour officer may, however, not pressurise a party to settle by
warning him or her or it of the consequences of losing the case in
the Labour Court. He or she may ask the parties to think of the
consequences of not settling the dispute by agreement. At the end of
the day, the parties are the masters of the conciliation process.
The
next step is for the labour officer to explore options for
settlement.
The
purpose of the step is for the labour officer to assist the parties
develop and consider a wide and creative range of options for a
possible agreement. He or she assists the parties to consider
moderation of their positions and expectations, harmonise their
needs, and to find joint gains and mutually beneficial needs.
The
aim is to make the parties achieve win/win outcomes. These are those
which meet the respective needs of the parties as much as is
practically possible.
The
labour officer should then assist the parties to agree to a solution
of the dispute which is practical, cost-effective and maximises the
mutual satisfaction of the parties needs.
As
a result of the pursuit of such options, the parties reach an
agreement as the settlement of their dispute through conciliation.
The
primary function of a conciliating labour officer is to assist the
parties in a dispute to reach agreement.
As
a conciliator, the labour officer is entitled to offer advice to the
parties. He or she should, however, avoid browbeating the parties
into a settlement of the dispute. He or she should not pronounce on
the merits of the respective cases of the parties, even if the
pronouncement is in the form of advice. All he or she should do is to
seek to steer the parties to a mutually agreed outcome.
Whilst
he or she must be flexible in approach, he or she must remain
impartial.
It
is clear that the conciliation to be embarked upon by the labour
officer to achieve the purpose which is prescribed under section
93(1) of the Act is not a mechanical chairing of the meetings between
the parties in dispute by an independent third party. It is a process
which involves active participation by the labour officer, who has to
intervene in the thought processes of the parties in an attempt to
resolve the dispute. See the NUMSA case supra at para 21.
After
properly discharging his or her functions as a conciliator in terms
of section 93(1) of the Act, a labour officer can issue a certificate
of no settlement to the parties to the dispute or unfair labour
practice in terms of section 93(3) of the Act.
A
certificate of no settlement is issued to the parties to the dispute
or unfair labour practice when conciliation has failed or at the end
of the thirty-day period or any further period agreed between the
parties.
The
expiry of the period of thirty days from the date of referral of the
dispute or the agreed extension thereof automatically terminates the
labour officer's conciliation jurisdiction.
The
certificate of no settlement should be issued within a reasonable
time of the expiry of the period of thirty days or the agreed
extension thereof.
It
is important that labour officers appreciate the legal effects of a
certificate of no settlement issued to the parties.
The
issuance of the certificate is evidence that the parties engaged in a
genuine process of conciliation with the active assistance of the
labour officer. It would not be compliance with the requirements of a
compulsory process of conciliation, provided for under section 93(1)
of the Act as a pre-condition for the issuance of a certificate of no
settlement, to call upon the parties to submit statements of claims
and responses followed by submission of heads of argument before a
certificate of no settlement is issued.
Such
a certificate of no settlement is not in accordance with section
93(3) of the Act. No attempt would have been made by the labour
officer to settle the dispute between the parties through
conciliation.
A
properly issued certificate of no settlement has legal effect.
The
law prescribes the next method of resolution of the dispute or unfair
labour practice to be employed on the basis of the presumption of the
existence of a validly issued certificate of no settlement.
The
effect of a certificate of no settlement is to establish the fact
that the attempt to settle the dispute through conciliation has
failed. In other words, it certifies that on the date it was issued
the dispute referred to the labour officer for conciliation remained
unresolved.
Once
a certificate of no settlement is issued to the parties to a dispute
of right or unfair labour practice involving a dispute of right, the
matter cannot be referred to arbitration. It must be the subject of
the adjudication process before the Labour Court.
The
certificate of no settlement is the legal document that determines by
its nature the disputes to be the subjects of the process of
adjudication. It also provides the rationale for the adoption of
adjudication as the next stage in the dispute resolution process.
Only
disputes of interest are referable to arbitration after a certificate
of no settlement has been issued in terms of section 93(3) of the
Act. Where the parties in a dispute of interest are engaged in an
essential service, the labour officer must refer the dispute to
compulsory arbitration. Where the parties in a dispute of interest
are not engaged in an essential service, the labour officer may refer
the dispute to voluntary arbitration with the agreement of the
parties.
The
rule prescribed by section 93(3), as read with section 93(5), of the
Act is therefore that the only methods for the resolution of disputes
of right and unfair labour practices involving disputes of right
referred to a labour officer in terms of section 93(1) of the Act are
conciliation and adjudication.
The
decision to base the system of resolution of disputes of right or
unfair labour practice involving disputes of right on the two methods
of conciliation and adjudication to the exclusion of arbitration is a
matter of policy determined by the Legislature.
Courts
would not seek to question the wisdom of the decision.
The
adjudication process is marked by procedures necessary for the proper
exercise of judicial power by the Labour Court.
Section
89(1)(a) of the Act provides that the Labour Court shall exercise the
function of hearing and determining “applications” and appeals
“in terms” of the Act. The procedures necessary for the exercise
of judicial power by the court a quo in the process of adjudication
are prescribed for the first time under the system for dispute
resolution enacted by section 93 of the Act in section 93(5)(c).
Section
93(5a) of the Act prescribes the matters to be brought before the
court a quo and the procedure to be followed in bringing them to the
court after the making of the draft ruling and order in terms of
section 93(5)(c) of the Act.
Parties
cannot agree to have a dispute of right dealt with other than in
terms of section 93(5)(c) of the Act. The reason is that section
93(5)(c) of the Act places the responsibility of making a “draft
ruling” on the labour officer.
He
or she is required to make a “draft ruling” on the merits of the
dispute as gathered from the conciliation process and after issuing a
certificate of no settlement.
At
that stage the matter would no longer be entirely in the hands of the
parties whom the labour officer would have been assisting to reach a
settlement of the dispute by agreement. At this stage, the labour
officer directs that the employer or anyone who is found guilty of an
unfair labour practice must cease or rectify the infringement by
paying a certain amount of money.
The
ruling has no legal force at this stage.
An
employee cannot enforce a “draft ruling”. Both the employer and
the employee cannot seek a review or appeal against the ruling at
this stage since it will still be a “draft”. It is a suspended
ruling, which must not be taken as a direction that the money be paid
there and then.
It
is an interlocutory ruling in abeyance and not a final ruling.
It
is a ruling that is made pending the decision of the court a quo,
which may subsequently give final legal effect to the “draft
ruling”.
The
matters in issue remain open, depending on the conduct of the party
at whom the “draft ruling” is directed. The court a quo also
gives the return date in the event that there is non-compliance with
the labour officer's ruling on the restitution day.
If
on or before the restitution day the respondent complies with the
order, then the matter ends there.
It
is only where a labour officer's “draft ruling” is made in
terms of section 93(5)(c) of the Act that the provisions of
subsections (5a) and (5b) of section 93 of the Act apply. It is these
two subsections that provide for the procedures for the institution
of proceedings in the Labour Court by a labour officer for the
confirmation of a “draft ruling” that would have been made in
terms of section 93(5)(c) of the Act.
They
are the provisions that reflect the rationale for the connection
between the process of conciliation, on the one hand, and that of
adjudication on the other. The provisions of subsections (5a) and
(5b) of section 93 of the Act underscore the fact that both processes
of conciliation and adjudication aim at delivering a just and fair
resolution of the dispute between the parties.
The
prescription of “application” as the process for bringing the
matters for determination by the court a quo is consistent with the
provisions of section 89(1)(a) of the Act.
The
ability of a labour officer to comply with the provisions of section
93(5)(c) of the Act and do what is prescribed for the purpose of the
adjudication process before the Labour Court will depend on the
conduct of the parties and the labour officer. If they all engaged in
a genuine conciliation process as envisaged in section 93(1) of the
Act, leading to a certificate of no settlement being issued to the
parties and a “draft ruling” made, the application for
confirmation of the “draft ruling” would institute valid
proceedings.
A
certificate of no settlement as evidence of compliance by the labour
officer with the provisions of section 93(3) of the Act would be
sufficient proof that an attempt has been made to settle the dispute
through conciliation.
An
employee in whose favour a draft ruling is made by a labour officer
has a legal right to be joined as a party to an application before
the court a quo for confirmation of that draft ruling by a labour
officer because he or she has a vested legal interest in the matter.
See Drum City (Pvt) Ltd v Brenda Garudzo SC 57/18.
Conciliation
as a method of dispute resolution is different from adjudication,
which involves the use of power by the third party to resolve the
dispute between the parties.
Procedures
such as the hearing of oral submissions or the production of written
submissions by the parties, and determination of the matters in
dispute, typical of the adjudication process, are alien to the
conciliation process.
During
the conciliation process the labour officer collects information and
attempts to settle the dispute between the parties in a friendly
manner. It is neither a trial nor a hearing.
The
court a quo referred to a labour officer who performs the functions
under section 93 of the Act as an “adjudicator”. It said:
“The
respondent's submissions were that the dispute was between the
respondent and its employees, the applicant being the adjudicator.
However, after making a ruling in terms of s93(5a) and (5b) she
becomes an applicant in a matter she was an adjudicator. The
adjudicator becomes a litigant who fights in one party's corner
against the other party against whom she made a ruling.”
A
correct reading of the provisions of section 93 of the Act shows that
they do not give the labour officer any powers of adjudication.
A
labour officer cannot be referred to as an adjudicator when he or she
performs the functions of conciliation in accordance with the
procedures prescribed for the process. He or she cannot be referred
to as an adjudicator when he or she makes the “draft ruling” in
terms of section 93(5)(c) of the Act.
A
misconception of the nature and scope of the functions of a public
officer under a statute cannot found a valid application to a court
alleging that the statute infringes a fundamental right.
The
judgment of the Supreme Court in the Drum City case supra has been
used as authority for the proposition that section 93(5)(c) (i) and
(ii) violates the right of an employee to equal protection of the law
enshrined in secion 56(1) of the Constitution.
The
allegation is that the Supreme Court held in the case that a “draft
ruling” in terms of section 93(5)(c) (i) and (ii) cannot be made
against an employee.
The
passage relied on in the judgment in the Drum City case supra reads:
“[12]
It is to be noted from the above, that only if the labour officer
rules against the employer or any person will he or she be required
to take the steps outlined in ss(5a) and (5b). In other words, the
provisions do not confer on the Labour Court the jurisdiction to
confirm a draft ruling made against an employee. That this is the
case is left in no doubt by the wording of s93(5)(c)(ii) which
specifically provides for a ruling like the one in casu in
circumstances where the labour officer finds that the dispute of
right in question 'must be resolved against any employer or other
person in a specific manner …'.”
A
“draft ruling” within the meaning of section 93 of the Act can
only be made in terms of section 93(5)(c).
One
would have thought that, once a finding of the fact that a “draft
ruling” has been made against an employee, compliance by the labour
officer with the procedure of making an application for confirmation
of the “draft ruling” would follow as a matter of obligation.
The
critical words at the end of section 93(5)(c) of the Act connecting
the making of the “draft ruling” and the remedy of application
for confirmation are “whereupon the provisions of subsections (5a)
and (5b) shall apply”.
Subsection
(5a) then opens with the following provision, which imposes an
obligation:
“(5a)
A labour officer who makes a ruling and order in terms of subsection
(5)(c) shall as soon as practicable …”. (the underlining is for
emphasis)
A
“draft ruling” does not determine the dispute between the
parties.
Whether
made against an employer or employee, it does not confer any right
until it is confirmed by the Labour Court.
It
is not clear why a procedure providing access to the Labour Court
should by construction be made available to one party in a dispute of
right which has not been resolved and not to the other party.
The
best that may be said of section 93(5)(c) of the Act is that there is
an element of vagueness lurking behind the use of the words “employer
or other person”.
Statutory
ambiguity or vagueness is a matter of interpretation of the statute.
It is not a matter of constitutional validity of the statute
concerned.
The
principle which has found expression in section 46(2) of the
Constitution is that, when interpreting a statutory provision, a
court must promote fundamental human rights.
The
elementary rule is that every reasonable construction must be
resorted to in order to save a statute from unconstitutionality.
A
statute must, where possible, be construed in conformity with
fundamental human rights.
One
cannot interpret the Drum City (Pvt) Ltd case supra as authority for
the proposition that it would only be cases where a “draft ruling”
has been made against the employer that confirmation proceedings
would ensue.
The
remarks were made as an obiter dictum.
The
ratio decidendi of that case is that an employee must be joined in
confirmation proceedings.
At
para [30] of the cyclostyled judgment the court said:
“When
all is said and done and in view of the foregoing, it is my finding
that there was a fatal non-joinder of the employee, Ms Khan, to the
proceedings a quo. Such proceedings can therefore not be allowed to
stand.”
Section
93(5a) gives the protection and benefit of the law, as the labour
officer's ruling has no force until it is confirmed by the Labour
Court. All parties appearing before the labour officer are protected.
Confirmation
of a draft ruling is a legal process.
The
judicial officer in the Labour Court is tasked with applying the
principles of the law to the facts. He or she is not merely
rubber-stamping the “draft ruling” of the labour officer. The
judicial officer is required to thoroughly investigate the matter. A
judicial officer is bound by the law of confirmation. He or she must
research the procedure and the applicable law.
It
has been contended that section 93(5a) of the Act violates the right
of access to the courts, enshrined in section 69(3) of the
Constitution.
Conciliation
does not contemplate a hearing as envisaged in adjudication. The term
“hearing” is a familiar term, generally understood to mean a
judicial examination of the issues between the parties, whether of
law or of fact. Conciliation is less formal than a hearing and is
designed to settle the dispute between the parties in a quicker and
more friendly manner.
Once
a hearing is conducted, there must be a determination which is
capable of execution or enforcement.
A
determination is a decision on an issue in favour of one party and
against the other party, with the effect of bringing an end or
finality to the cause of action or controversy between the parties by
the authority to whom it is submitted under a valid law for disposal.
If
what is done by the authority concerned does not have the effect of
bringing the dispute to an end as between the parties, their rights
and obligations remain undetermined.
The
procedure provided for in section 93(5a) of the Act is based on the
making of a “draft ruling” by the labour officer. The “draft
ruling” is not capable of enforcement until it has been confirmed
by the Labour Court.
A
“draft ruling” is not a determination, as it is not preceded by a
hearing.
The
purpose of making an application supported by an affidavit is to
place the matter in dispute and the evidence before the Labour Court
for hearing and determination.
A
perusal of section 93(5b) of the Act is reflective of the fact that a
hearing commences when the matter goes for confirmation before the
Labour Court. It is not coincidental that the term “hearing”
appears for the first time in the same section in terms of which the
matter is brought to the Labour Court for confirmation.
The
exercise of judicial power ordinarily does not begin until some
tribunal which has to give a binding and authoritative decision
(whether subject to appeal or not) is called upon to take action.
Adjudicative
facts of the dispute of right or unfair labour practice involving a
dispute of right can be gathered only by judicial process. The labour
officer would not have ascertained the facts which could be
ascertained only by resorting to judicial process. Only by being
first ascertained through legal procedure are facts brought into the
sphere of law.
The
Labour Court, as the competent organ under the statutory scheme for
the resolution of the type of disputes prescribed under section 93(3)
of the Act, is the organ to legally create the adjudicative facts.
It
is clear from the provisions of section 93(5a) of the Act that the
matters over which the Labour Court would have jurisdiction if they
are brought to it in terms of the requirements of the prescribed
procedure are products of strict compliance by the labour officer
with the procedural and substantive requirements of sections 93(1),
93(3) and 93(5)(c) of the Act.
The
procedure in section 93(5a) is not to be read independently of the
preceding procedures provided for in these subsections. This means
that a matter that is not a product of compliance with the procedural
and substantive requirements of these provisions would not fall
within the class of matters over which the Labour Court would have
jurisdiction in terms of section 93(5a) of the Act.
It
would not be a matter which would be the subject of the procedure for
bringing such matters to the court a quo, as prescribed under section
93(5a) of the Act.
Bringing
such a matter to the court a quo, under the guise of invoking the
procedure prescribed in the subsection, would not validly institute
proceedings in that court in terms of section 93(5a) of the Act. The
court a quo would not have a valid matter over which to exercise
jurisdiction.
Where
the intention of the Legislature is to confer on a labour officer the
power to determine a matter referred to him or her, the empowering
provision does so in express terms.
Section
101(1c) of the Act, for example, provides that where an employment
council refuses to approve an employment code drawn up by a works
council, the works council may refer the matter to a labour officer,
and the determination of the labour officer on the matter shall be
final unless the parties agree to refer it to voluntary arbitration.
Section
101(6) of the Act provides that where disciplinary proceedings
instituted under the employment code are notified to a person alleged
to have breached the code are not determined within thirty days of
the date of notification, the employee or employer concerned may
refer such matter to a labour officer. The labour officer may then
determine the matter or otherwise dispose of the matter in accordance
with section 93 of the Act (the underlining is for emphasis).
These
provisions show that the power to determine a matter is different
from the power to attempt to settle a dispute in terms of section
93(1) of the Act.
THE
ROLE OF THE DESIGNATED AGENT
As
indicated earlier, the National Employment Council for the Motor
Industry requested the respondent to redress the dispute of
non-payment of retrenchment packages.
Section
62(1(a) of the Act gives an employment council the power to settle
disputes that have arisen or may arise between employers and
employees within the undertaking or industry in respect of which it
is registered.
The
registered employment council exercises the power and performs the
function to settle disputes referred to in section 62(1)(a) of the
Act through its designated agents, appointed and authorised by the
Registrar of Labour in terms of section 63(3a) of the Act.
Section
63(3a) of the Act allows a designated agent, upon authorisation by
the Registrar of Labour, to either redress or attempt to redress any
dispute which is referred to the designated agent or has come to his
or her attention.
That
is the case where such dispute occurs in the undertaking or industry
and within the area for which the employment council is registered.
Section
63(3b) of the Act expressly ousts the jurisdiction of a labour
officer where a designated agent is authorised to redress any dispute
or unfair labour practice in terms of section 63(3a) of the Act.
A
labour officer has no jurisdiction to conciliate a dispute which
should have been referred to a designated agent in terms of section
63(3a) of the Act.
The
labour officer must not simply decline to entertain the dispute. He
or she must redirect the dispute to the correct forum.
What
is key in understanding what a designated agent can or cannot do is
to understand the meaning of the phrase “redress any dispute”
used in section 63(3a) of the Act.
When
used as a verb, the word “redress” according to the Oxford
English Dictionary means to remedy or set right an undesirable or
unfair situation.
A
designated agent authorised by the Registrar of Labour redresses a
dispute referred to him or her. He or she offers a remedy or sets
right an unfair situation.
The
meaning of section 63(3a), as read with section 63(3b), of the Act is
that where the designated agent redresses a dispute by making a final
decision as to the rights of the parties, section 93 of the Act does
not apply.
The
decision of the designated agent at that stage is final. There is no
need for it to be confirmed in terms of section 93(5a) and section
93(5b) of the Act for purposes of execution.
The
party that is aggrieved by the decision made in terms of section
63(3a) of the Act can only appear before the Labour Court by way of
an appeal or review. The Labour Court can then exercise its powers
over that matter in terms of section 89(1) of the Act.
A
designated agent may only exercise one power over a dispute. He or
she may redress the dispute or attempt to redress it. He or she
cannot do both. If he or she chooses to redress the dispute by
hearing and determining the issues in dispute, he or she cannot at
the same time attempt to redress the dispute.
It
is clear from the provisions of section 63(3a), as read with section
93(1), of the Act that a designated agent can only proceed in terms
of section 93 of the Act if he or she has not redressed the dispute.
He or she would be attempting to settle the dispute through
conciliation. There can be no attempt to settle a dispute which has
been redressed.
The
provisions of section 93 of the Act would apply when the power to be
exercised by the designated agent is an attempt to redress the
dispute through conciliation.
The
designated agent does not have to consult a senior, as is required by
section 93(5) of the Act in the case of a labour officer. Section
63(3a) of the Act provides that the provisions of section 93 of the
Act would apply to a designated agent “with the necessary changes”.
The
process explained above was, however, not what caused the parties to
appear before the court a quo.
A
final decision was made by a designated agent after hearing evidence
on the dispute from the parties.
It
was a decision made by an impartial arbiter after hearing evidence
from both parties. It disposed of the issue for determination. A
certificate of no settlement, which is an essential step in the
procedure provided for under section 93(3) of the Act, could not be
issued.
It
is on the basis of the certificate of no settlement that the “draft
ruling” made under section 93(5)(c) of the Act is endowed with
validity.
At
the point the final decision was made by the designated agent, no
dispute remained to be resolved by way of conciliation. On that basis
alone, the subsequent proceedings before the court a quo were a
nullity.
Section
93 of the Act does not create an avenue for the validation of a final
decision that is made by a designated agent in terms of section
63(3a) of the Act. It only creates an avenue where a designated agent
adopted the process of attempting to settle the dispute through
conciliation in accordance with the provisions of section 93 of the
Act.
Be
that as it may, no conciliation proceedings were conducted.
As
already indicated, it is necessary that conciliation be attempted in
the first instance for the procedure in section 93(5a) and section
93(5b) of the Act to be properly adopted. This is so because in
conciliation proceedings the labour officer, acting in terms of
section 93(1) of the Act, helps the parties to a dispute to reach a
settlement.
It
is common cause that the dispute between the applicant and its former
employees was a dispute of right.
The
aggrieved former employees claimed their retrenchment packages in
terms of section 12C(2) of the Act. The provision enjoins an employer
who terminates contracts of employment on notice to pay the affected
employees a minimum retrenchment package.
The
respondent ought to have first attempted to settle that dispute
through conciliation if that was the method by which she would have
decided to resolve the dispute referred to her.
According
to the respondent's determination, the applicant was under an
obligation to pay the sums claimed by the former employees whose
contracts were terminated on notice. No certificate of no settlement
was issued by the respondent. Absence of the certificate is evidence
of the allegation that she did not preside over a conciliation
process.
However,
section 93(5) of the Act makes it clear that it is upon the issuing
of a certificate of no settlement that a labour officer, acting in
terms of section 93(1) of the Act, may direct that there be payment
of money by an employer in order to rectify an unfair labour
practice. At that point, the labour officer merely makes a “draft
ruling” which has no legal effect until it is confirmed by the
Labour Court.
Without
the certificate of no settlement, a labour officer cannot purport to
act in terms of section 93(5)(c) of the Act. To that end, the
respondent could not have approached the court a quo in terms of
section 93(5a) of the Act.
The
court a quo could not have assumed jurisdiction over the matter in
terms of section 93(5b) of the Act.
The
respondent's determination ordered the applicant to pay
retrenchment packages to the affected former employees by 31 July
2016. That order was not based on any of the provisions of section 93
of the Act.
Section
93(5a) and section 93(5b) state that the exercise of such power is
the prerogative of the Labour Court upon application for confirmation
of a “draft ruling” by the labour officer.
Where
a final decision has already been made on the dispute in question,
there cannot be any conciliation to speak of in terms of section 93
of the Act.
Conciliation
by nature is an alternative form of dispute resolution, which cannot
be resorted to once the dispute has been resolved.
The
analysis shows that there is a difference in the legal treatment of a
party who has already obtained a final decision on a claim and one
who has obtained “a draft ruling” in terms of section 93(5)(c) of
the Act. The two parties are not similarly situated.
The
difference in the remedy available to them is justified by the nature
and effect of the procedure adopted for the resolution of the dispute
of right or unfair labour practice involving a dispute of right.
There
were no proceedings before the court a quo in terms of section 93(5a)
of the Labour Act [Chapter 28:01] which would have entitled the court
a quo to exercise its jurisdiction under section 175(4) of the
Constitution in respect of questions of the constitutionality of
section 93(5a) and section 93(5b) of the Act.
GWAUNZA
DCJ: I agree
GARWE
JCC: I agree
MAKARAU
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
BHUNU
JCC: I agree
Mbidzo,
Muchadehama & Makoni Legal Practitioners, applicant's legal
practitioners
J
Mambara & Partners, respondent's legal practitioners
