ISOQUANT INVESTMENTS t/a ZIMOCO v MEMORY DARIKWA CCZ 6/20
Judgement by MALABA CJ, with the full bench of the Constitutional Court of Zimbabwe concurring.
Date 17 June 2020
Introduction
The Constitutional Court at some point in May 2018 issued an order in a case where an employer, Zimoco had challenged the constitutionality of the provisions of Section 93(5) of the Labour Act (Cap 28:01) as amended in 2015 in so far as they allow a Labour Officer to apply for the confirmation of a ruling he/she would have issued. The court dismissed the application and promised to write a full judgment explaining the operationalisation of Section 93 (5) of the amended Labour Act.
I present below my preliminary observations of the main findings arising from the judgment. I will return with a fully dressed opinion piece in due course.
KEY POINTS ARISING
1. Any draft ruling in favour of employer or employee can be confirmed.
2. A draft ruling without a preceding Certificate of No Settlement, as was the case in this matter, cannot be brought for confirmation.
3. A draft ruling is not a ‘determination’ and is therefore not binding and enforceable. ‘’It is an interlocutory ruling in abeyance.” No one wins or losses at that stage, it is not a hearing.
4. The role of a conciliator is more intense and involving that the window dressing shows we witness every day. “It is not a mechanical chairing of the meetings between parties in dispute by an independent party.” The conciliation process is in the discretion of the Labour Officer but usually involves four broad stages i.e. introduction, storytelling, dispute analysis and problem solving.
5. The LC should decline to jurisdiction in a matter where the conciliator does not show that he attempted to conciliate the dispute conscientiously resulting in a Certificate of No Settlement and a draft ruling.
6. Conciliators are not adjudicators. They do not determine or redress disputes. Procedures such as hearing of oral submissions or production of written submissions by the parties and determination of disputes, typical of an adjudication process, are alien to conciliation. The proceedings are uniquely flexible and informal to the parties with the end goal of brokering settlement between parties.
7. Designated agents have dual powers, either to redress or attempt to redress disputes. Where they redress disputes, the matter is decided definitively and cannot be brought to the LC for confirmation in terms of Section 93 (5) but can be challenged on appeal or review. Where they attempt to redress a dispute they do so through conciliation in terms of Section 93(1) and should issue a Certificate of No Settlement before the matter can be taken for confirmation to the LC.
8. The remarks in Drum City v Garudzo to the effect that a ruling against an employee cannot be brought for confirmation were made obiter and do not represent the law [the ratio is that a successful employee litigant at conciliation should be joined to confirmation proceedings in which he/she retains an interest]. Every draft ruling should be brought for confirmation.
9. Conciliation proceedings are not “hearings”. A hearing only starts at the LC.
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