THE HIERARCHY OF LABOUR DISPUTES
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In a dispute between the employer and the employee, the first port of call
is the Labour Officer.
His mandate is to hear the matter and attempt conciliation where possible
or refer for arbitration if agreed by both parties.
The Labour Officer is obliged to keep records of the proceedings, Section
93 of the Labour Act.
NB- The Labour Officer is not a court. It is even doubtful whether he is a
quasi-court.
If a party is not satisfied with the determination of the Labour officer that
part can appeal to the Labour Court.
The Labour Court is a full court. It duty is to:
 Hear the appeal
 Decide on it
 Refer it back to the Labour Officer, if need arises.
NB The Labour Officer and the Labour Court are administered under two
different government ministries, i.e. that of Justice and that of Labour.
If the dispute is not settled within 30 days after the Labour Officer began
to attempt to settle it, the Labour Officer shall issue a certificate of no
settlement to the parties.
Appeals against the ruling of the Labour Court go to the Supreme Court.
COMMENT
At best the Labour Officer and the Senior Labour Officer are quasi-courts. They do
exercise some of the functions of the courts but not all of them. To that end in the
hierarchical structure of the law courts they should appear.
NB. You can even have quasi-courts at shop floor level, e.g. the Disciplinary Committee
at the workplace; in the university setting a student disciplinary committee will be a
quasi-court.
In a quasi-court just like in a full court, the rules of natural justice must be followed.
RATIONAL FOR HAVING A SPECIALISED SYSTEM TO HANDLE LABOUR
RELATIONS.
Labour legislation has been constantly undergoing reform and it continues to do so. Some
of the reasons for these reforms are as follows:
 Non-conformity to international instruments.
 Too complicated for ordinary employers and employees.
 Operates too slowly
 Regulated by too many disparate statutes.
 Labour Law must address the question of fairness as compared to lawfulness.
Of late, Zimbabwe has witnessed the introduction of a specialist Labour system and the
following justifications can be raised to support the move:
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A specialist person has more value. He is dealing with the same issue at all
times.
He has expert knowledge about the subject matter.
The previous system was too generalized. All cases were dealt with in the
same law courts e.g. criminal cases, labour cases, company law cases, etc,
the practitioners in the courts were therefore jacks of all trades: masters of
none.
Because so many cases are appearing on the same roaster, there is
clogging of the court role. Due to that there is a backlog of cases.
The earlier system was bureaucratic and matters took long to finalise.
In a specialized Labour Court, you are dealing only with labour cases.
These are dealt in with people who are experts in Labour Law, and who
are therefore able to expedite the finalisation of the cases.
COMMENT
It is important though for the specialised court to develop its own culture, i.e. one which
enables it to finish cases quickly and efficiently. A culture which enables it to deal with
unnecessary delays, e.g. endless requests for postponing cases- a common technique
amongst lawyers. A new culture will need:
 A lot of financing
 Retraining and re-orientation
 A total departure from the old ways.
Current experiences suggest that a number of areas require specialized courts, e.g. I T
Law, Banking Law, etc the reason being that the traditional judges are no longer
adequately qualified to deal with matters arising in these areas. In our fast changing
world it is imperative that we have specialist courts. However these systems must be
properly managed and developed.
THE AUDI ALTERAM PATERM RULE.
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This is the right to be heard.
Covered in the expression “every person has a right to their day in court”
In practice however, the right to be heard may turn out to be a theoretical right.
E.g.
o In criminal cases, the majority of offenders are unsophisticated and poor
persons who are unable to effectively protect their rights.
o In labour cases, the issue of sophistication of the offender also comes into
play. E.g. a farm worker may find it difficult to effectively protect his
interests vis a vis the right to be heard, while a bank manager will protect
his occupational interests to the fullest extent.
o Sometimes the sophistication of the community will depend on the
strength of the economy of a particular country. E.g. the worker in the
West may be in a better position to protect their interests than a worker in
the Third World.
COMMENT.
In Zimbabwe, the right to legal representation is not guaranteed. In fact, in greater
majority of cases persons are unrepresented. This applies equally to labour cases. Due to
this situation, it is quite possible that injustices may take place.
THE REASONABLE MAN CONCEPT. (DILIGENS PATERFAMILIAS)
Some quotations on the definition of the reasonable man.
I. “The reasonable person is not a timorous fainthearted always in trepidation lest he or
others suffer injury. On the contrary, he ventures out into the world, engages in affairs,
and takes reasonable chances. He takes reasonable precaution to protect his person and
property and expects others to do likewise.”
II. “One does not expect of a diligens paterfamilias any extremes such as solomonic
wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or
the trained reflexes of a racing driver. In short a diligens paterfamilias trades life’s
pathways with moderation and prudent common sense.”
III. “Some person are by nature unduly timorous and imagine every path to be beset by lions.
Others of more robust temperament fail to foresee or nonchalantly disregard even the
most obvious dangers. The reasonable person is deemed to be free of both over
apprehension and over confidence.”
The legal fiction is that some where within the community there is a reasonable person.
This person is not an extremist. He is a moderate average person who behaves
reasonably. He is neither an extremely cautious person nor a reckless person. The concept
of fairness is judged through the eyes of the reasonable person. The reasonable person is
also known as the diligens paterfamilias or the man on the Clapham omnibus (in the
UK).
- In reality it is the judge who assumes the role of being the reasonable
person.
- The problem with this is that the judges like any other person are subject
to perceptions and deviations.
- The reasonable man concept does not factor in human prejudices.
- Judges are subject to bias provoked by:
 Political affiliation
 Religious persuasion
 Race or tribe
 Culture
 Stereotypes, etc.
The reasonable person test in Labour Law
- The reasonable person test is a ubiquitous concept in law, i.e. it is found
everywhere.
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In Labour Law the usual question asked is: what would have a reasonable
employee done in these circumstances? Or
What would have a reasonable employer done in these circumstances?
As shown above, the reasonable person is taken to mean the middle of the
road ordinary man. (or the man in the SENGA omnibus).
Unfortunately, the interpretation of the reasonable man will be affected by
cultural norms and values.
What may appear to be reasonable to one may be unreasonable to another.
The classic example given in Labour Law is provided by the views of the
famous English judge Lord Denning.
Lord Denning observed that as an employer, he found it very difficult to
be neutral when presiding over labour cases.
In short he meant that to him the concept of the reasonable person was as
is seen through the eyes of the employer.
In the Zimbabwean scenario, it is not very clear whether the reasonable
person is the reasonable employer or the reasonable employee. But
certainly, prior to 1980, it was the reasonable employer. After
independence, we moved towards the reasonable employee.
The judge will normally be influenced by:
 Rights and obligations of the parties on the facts
 The judges’ attitudes themselves, i.e. their views, cultural
persuasion, race, religion etc
Ultimately in practice, the reasonable person will be as seen through the
eyes of the sitting judge.
The accusation that is normally made is that judges are always out of
touch with reality and that they adopt an armchair approach to the problem
at hand.
In the Labour scenario for example, they are so remote from the shop floor
that they don’t understand what really goes on in the shop floor.