eBusiness Weekly
Arthur Marara
Once there is a contract of employment, the Labour Act kicks in to govern the employment relationship.
As we discussed last week, disputes are bound to occur, hence there is need for a thorough understanding of the available dispute resolution mechanisms.
Conciliation is one of the effective ways that is at the disposal of both the employers, and the employees depending with the nature of the complaint.
Conciliation is a method of dispute resolution that is prescribed in terms of s 93(1) of the Act by which the labour officer must attempt to settle the dispute referred to him.
The Labour Act does not however provide for the specific acts that the Labour Officer has to undertake in order to facilitate the conciliation process.
The interpretation to be given to S93(1) of the Act has thus to be generous to mean that the labour officer has powers which are necessary to enable him or her to discharge the duty imposed on him or her in terms of the Act.
The Labour Officer is thus at large to 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. Though there is no rule of law that governs the manner the conciliation, the process may generally be govern into four stages.
These steps are not to be treated as cast in stone as each case has to be determined based on its own merits. The four general stages are
1. Introduction — Why are we here as the parties. Who is the Labour Officer? What is the role of the Labour Officer in the conciliation?
This is a legitimate expectation of the parties to the dispute as they would not have contributed to his or her appointment as the conciliator in their dispute.
The purpose of the 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 parties must feel confident that the Labour Officer is independent of them and has no interest in the matters in dispute.
During the introduction, the parties also get to introduce themselves, and their respective capacities. An attendance register is also circulated so that an accurate record is also kept as to who was present and who was not at the conciliation.
2. Storytelling — This is an art that has to be learnt. The focus of this stage is to help the parties concentrate and prepare them for the next stage.
3. Dispute analysis — Do we actually have a dispute. There are times that parties create disputes that are no longer in existence.
The Labour Office has to take the parties through an analysis of the dispute.
4. Problem solving — The Labour Officer is a facilitator in this process. His or her goal is not to make a decision for the parties that are before him, but to create an atmosphere where issues can be ventilated and a resolution be arrived at.
Preparation is a must
The labour officer must invest time into preparation and understanding of the nature and possible causes of the dispute between the parties.
In some instances, in the past some offices would just give each party an opportunity to speak without having understood the dispute earlier.
An understanding and preparation will help the officer to be more useful in the process of the dispute settlement.
The duty imposed on the labour officer by s93(1) of the Act is premised on the fact of the existence of a dispute relating to or arising from an employment relationship.
This particular dispute is the one that is supposed to be conciliated and resolved. Even if a party decides to escalate the matter to the Labour Court, the Court will not preside over an issue that was never conciliated by the Labour Officer. There is an obligation for a dispute to be conciliated first if the parties are going through conciliation.
The Labour Officer is also obliged to conciliate only on disputes that are covered in terms of the Labour Act, and not just disputes in general.
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 (Isoquant Investments (Private) Limited T/A Zimoco v Memory Darikwa CCZ 6/20).
Proper facilities for conciliation
There must be proper facilities for the conciliation. The Labour Officer thus has an obligation to ensure that these are in place. There must also be 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.
Some of the cases involve a lot of emotions hence there is need for precautions to avoid the parties going physical or even shouting at each other. The encouragement is therefore for facilities that allow parties to be apart from each other even if they are in talking terms. This is caution.
Side meetings
The conciliation, the Labour Officer is allowed to conduct side-meetings. During these meetings the labour officer must endeavour to get as much information from the parties as possible.
Each party must be allowed to give his or her or its side of the dispute in detail. The Labour Officer must probe the party concerned to get the relevant information.
Parties in conflict situation parties are usually eager to state their case. The parties should be given this opportunity sooner, in order to diffuse emotions and anger, and consequently pave way for an effective dispute resolution process.
The labour officer should 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.
There is need for the Labour Officer to use effective inter-personal skills, such as building rapport, listening, paraphrasing, summarising, dealing with emotion including anger and threats, and helping people save face. Parties become free to contribute the moment the realise that the Labour Officer is actually listening.
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.
This process must be done for all the parties so that the Labour Officer can secure information from both parties. Once the Labour Officer is convinced that the parties are ready to be brought together in a joint meeting then he or she can put them together.
Duty of confidentiality
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.
This enables the Labour Officer to know which information to be disclosed to the other party or not.
There is need for clear authority on this particular aspect. Some of the information would have been disclosed in good faith to the Labour Officer, hence clarity is needed.
The process has to be confidential in order for the labour officer to be able to assist the parties to resolve the dispute.
The conciliator must assist the parties obtain admissions of fact and of documents relevant to the dispute.
He or she can further 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. This is all in a bid to secure a settlement between the parties.
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]
