By Caleb Mucheche
Dispute resolution is a system of resolving disputes which covers both formal and informal methods. The law mainly regulates formal dispute resolution systems. According to the Oxford Dictionary, fairness is the impartial and just treatment or behaviour without favoritism or discrimination. The principle of fairness may be described as the thread that runs through labour law in general and labour dispute resolution system in particular. Fairness constitutes the heart and soul of justice. One of the chief characteristics of good law is fairness. In labour matters, fairness is anchored on a hybrid of procedural and substantive fairness. Procedural fairness is the barometer or yardstick to measure proper and lawful compliance with a procedure to arrive at a decision. Substantive fairness deals with the legal correctness of a decision based on the facts and merits of a given case. This paper2 deals with a critical legal analysis of the application of the principle of fairness to labour cases in Zimbabwe. In labour matters, from the side of employees, fairness is rooted in equity and social justice as the foundation and chief cornerstone of labour law anchored on section 2A of the Labour Act.
LABOUR DISPUTE RESOLUTION SYSTEMS BY LABOUR OFFICERS, MAGISTRATES COURT, LABOUR COURT, HIGH COURT, SUPREME COURT AND CONSTITUTIONAL COURT : EXCLUSIVE FIRST INSTANCE JURISDICTION OF LABOUR OFFICERS AND LABOUR COURT LABOUR MATTERS AS CONFIRMED AND ENDORSED BY THE SUPREME COURT OF ZIMBABWE
The Supreme Court of Zimbabwe, as the final appellate court for all matters other than constitutional matters where the Constitutional Court has the final say, authoritatively solved once and for all the old age tug of war, perennial confusion and several previous conflicting judgments3 about first instance/first bite jurisdiction in labour matters pitting various players like labour officers, Labour Court and High Court. There are legal situations where other dispute resolution systems like Magistrates Court, Labour Court and High Court also exercise secondary jurisdiction in labour matters with regard to confirmation of draft rulings as well as registration of draft rulings. Access to justice for resolution of any general or universal civil dispute like a labour dispute via a court or tribunal established by law is at the heart and soul of section 69 of the Constitution of Zimbabwe; Right to a fair hearing provisions and more particularly subsection (2) which elaborately provides as follows:‘’in the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law.’’
The pinnacle floodgate of access to justice is section 69(3) of the Constitution of Zimbabwe, “Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”
It is now clear like tropical sunlight that under the prevailing or current labour legislative framework in Zimbabwe, labour officers enjoy sole primary or first instance jurisdiction in the bulk of categorized labour matters and such jurisdiction cannot be ousted or taken away by the High Court or any other court of law or tribunal. Also there are some labour matters where first instance jurisdiction is reposed in the Labour Court by the legislature and not labour officers, especially exercise of review powers in labour matters.4 This position was explicitly and instructively enunciated and underscored by the Supreme Court in the case of Stanley Nhari v Robert Gabriel Mugabe and Others SC 161/20 at pages1, 2 and 20 as follows:
“This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law. At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to s 171 of the 2013 Constitution, has jurisdiction to determine all matters including issues of labour and employment. Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.
 Whether the High Court has jurisdiction in all matters including matters of labour and employment has been a subject of conflicting decisions of the High Court. Until such time as this Court were to make a definitive pronouncement on the matter, parties to litigation were at liberty to cite cases on both sides of the divide that supported their respective positions on the matter. It seems to me that, the circumstances, each party should bear its own costs, both in the court a quo and this Court. On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have jurisdiction over all civil and criminal cases in Zimbabwe. The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialized courts to handle specific areas of the law. The High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.” see also Chingombe & Anor v City of Harare and Ors SC 177/20.
DUTY OF A LABOUR OFFICER TO CORRECTLY RECORD FACTS OF A LABOUR DISPUTE, DO PROPER DIAGNOSIS OR PROGNOSIS AND APPLY THE CORRECT LEGAL PRESCRIPTION
Labour officers deal with both factual and legal issues in relation to disputes of interest and disputes of rights referred to them in terms of section 93 of the Labour Act. It is important for a labour officer dealing with a dispute to get the facts right and record them correctly. Also, it is equally important for a labour officer to apply the correct law to the facts of a dispute. Thus, there is a need for a labour officer to do a correct diagnosis or prognosis of the labour dispute and thereafter give a correct legal prescription or solution befitting the problem at hand. A labour officer doing adjudication or preparing a draft ruling is a trier of fact and applies the law to the given facts as well. At the end of the day, each case will depend on its own facts and merits.
SOME BIBLICAL DIMENSIONS TO THE CONCEPT OF FAIRNESS IN THE ADJUDICATION OF LABOUR DISPUTES
The Bible provides an illuminating and scintillating view about the concept of fairness in the adjudication of labour disputes through various scriptures from the holy book. One of the notable scriptures is James 5 verse 4 “ Indeed the wages of the labourers who mowed your fields, which you kept back by fraud, cry out; and the cries of the reapers have reached the ears of the Lord of Sabaoth.” In the same vein, an old testament prophet and proponent of social justice by the name Amos sounds a stern warning for the need to adhere to social justice in Amos 4 verse 1-2 “ Hear this word, you cows of Bashan, who are on the mountain of Samaria, Who oppress the poor, Who crush the needy, Who say to your husbands, “Bring wine, let us drink. The Lord has sworn by His holiness, Behold the days shall come upon you when he will take you with fishhooks and your posterity with fishhooks.” Similarly, Colossians 4 verse 1 espouse fairness and a warning for a moment of reckoning before God in the following words, “ Masters, give your employees what is just and fair, knowing also that you have a Master in heaven. Also 2 Chronicles 19 verse 7 says, “ Judge carefully, for with the Lord our God there is no injustice or partiality. He is impartial and never takes bribes.” Read more….