eBusiness Weekly
Arthur Marara
One of the areas that businesses have to be alert to is the handling of disputes that arise at the workplace.
Disputes are bound to rise from the contracts of employment that form the basis for employment relationship. In the event that some of them are not resolved internally, third parties are often roped in the process.
This week I am going to touch a dispute resolution mechanism provided for in terms of the Labour Act (Hereinafter referred as to as “the Act”); Conciliation.
Section 93(1) of the Act provides for conciliation, which is a statutorily compulsory method for the resolution of all disputes and unfair labour practices referred to a labour officer.
The importance of conciliation is underscored by the fact that the legislature makes it compulsory in respect of disputes of unfair labour practices referred to a Labour Officer.
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. This is also determined by the nature of the dispute.
What is Conciliation
Conciliation is an extra curial method for dispute resolution. It falls under the bracket for alternative form of dispute resolution. It is a process that does not involve the use of power in the resolution of a dispute between parties (Isoquant judgment).
This is where it differs with adjudication. Conciliation seeks 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 (usually the Labour Officer in the context of the Labour Act).
Parties to conciliation are able to arrive at a conclusion that is mutually beneficial to them as the resolution is a result of an agreement.
The obvious advantage of conciliation is that it allows the parties to have a predictable outcome rather than where the outcome is determined by a third party for them.
If properly used, conciliation presents a mechanism for expeditious resolution of disputes. I have often encouraged clients to be objective when dealing with matters on conciliation. It’s either you have a case or you don’t have a case.
Conciliation allows for objectivity, and can help parties that ordinarily do not have a desire to talk to each other, or have been unable to find a resolution to their dispute.
The involvement of the third party is meant to bring objectivity to conversations that may often be preceded by tension.
The 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.
This can properly be termed the first duty of the labour officer. The labour officer is empowered to determine a process to attempt to resolve the dispute.
There is room for the labour officer to consider and adopt mediation of the dispute, conducting a fact-finding exercise, and making proposals to the parties on how the dispute may be resolved.
One of the key roles of the labour officers in the conciliation exercise is to undertake the process of fact-finding and recommend proposed solutions to the parties in order to guard against perceptions of bias.
A conciliator is not a judge so he or she should not judge the matter.
The Act places an obligation on the labour officer to do all that can reasonably be done to assist the parties to resolve the dispute by agreement without imposing the solution on them.
This effectively means that the parties remain the masters of the process. The parties are responsible for the terms of any settlement. This means that the labour officers must be thoroughly trained in the art and skill of conciliation.
The success of any conciliation exercise is connected to the attitude of the parties to the dispute. One of them is the willingness to settle.
There are parties that go to conciliation as a matter of process with no intention to actually settle the dispute.
Before concluding that there is no settlement, there is need for evidence that the parties engaged in serious and bona fide discussion of matters over which they disagreed.
The labour officer should also thoroughly understand his or her role as a conciliator and actively exercised his or her functions. There is need for strict adherence to conciliation as doing anything else will render the process null and void.
The Minister is empowered under s 127(2) of the Act to make rules regulating the practice and procedure for the resolution of disputes through conciliation. Labour officers are encouraged to adopt a systematic approach in the process in seeking consensus between the parties to the dispute.
In terms of Section 93(1) of the Act the Labour Act 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 s 93(1) of the Act, the labour officer has the power to hold the parties in the conciliation process for at least thirty days.
During the thirty days the labour officer has been engaging the parties in an attempt to resolve the dispute through conciliation, the parties to the dispute 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.
You can also learn more about the process in the leading case of Isoquant Investments (Private) Limited T/A Zimoco v Memory Darikwa CCZ 6/20.
We will continue with conciliation in the next article.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a practising attorney, bestselling author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach, legal proctor (UZ). He has vast experience in employment law and has worked with several corporates, and organisations. He is also a notary public and conveyancer. He is passionate about promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
