Resolving disputes under new labour legislation

This is Part Three of “Resolving disputes under new labour legislation”

A properly issued certificate of no settlement has legal effect.

The law prescribes the next method of resolution of a dispute or unfair labour practice to be employed is on the basis of the existence of a validly issued certificate of no settlement.

A certificate of no settlement is meant to establish the fact that the attempt to settle the dispute through conciliation has failed.

In other words, it certifies that on the date it was issued, the dispute referred to the labour officer for conciliation remained unresolved.

Registration of certificates of settlements

When a dispute or unfair labour practice is resolved through conciliation, the labour officer will document the settlement in writing. This written settlement shall be registered with the relevant court to ensure enforcement in case of non-compliance.

The labour officer will issue a certificate of settlement, which holds the same weight as a civil judgment from the appropriate court, enabling its enforcement.

The Labour Act does not define “appropriate court”. This can only be interpreted as courts with the requisite monetary jurisdiction. The certificate of settlement thus has to be sounding in money for it to be registrable and enforced.

The inevitable question is what is the position of the Labour Court on enforcement of certificates of settlement?

The position of the Labour Court

The Judicial Amendment Bill had proposed to create the office of the Messenger of Court for the Labour Court. Clause 11 of the Bill stated that “This clause inserts a new section 92BB to the Labour Act (Chapter 28:01) which provides for the establishment of the office of the Messenger of the Labour Court.

“At present, the Labour Court does not have its own mechanism for enforcing judgments and litigants are forced to register their judgments with an appropriate High Court or Magistrate’s Court for enforcement purposes.”

In the Judicial Laws Amendment Act, this provision inserting a new section 92BB to the Labour Act is not there. The lawmakers, thus, wanted the status quo to obtain. This means the Labour Court still remains unable to enforce its own judgments.

The successful party, thus, has to approach either the Magistrate’s Court or the High Court to enforce the decision of the Labour Court.

Imagine, for a moment, the Magistrate’s Court for one reason or another declines to register a Labour Court judgment. This means a party who was successful in the Labour Court now has to go to the High Court on appeal to challenge the decision of the Magistrate’s Court, refusing to register the judgment. The same applies with the High Court as well.

The Labour Court is a creature of the statute. This means whatever application it makes has to be made in terms of the Labour Act or any other enactment. In NRZ v Zimbabwe Railways Artisans Union & Ors 2005(1) ZLR 341 (S), ZIYAMBI JA at 346F-347D said: “There is, I think, judging from the cases which have come before us, a misconception generally held by the Labour Court, namely, that it is, in terms of Section 89 of the Act, endowed with jurisdiction to entertain all applications brought before it . . . Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application in terms of the Act or any other enactment.

“This necessarily means the Act or the other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring; see PTC v Chizema S-108-04 . . . thus, the application and the remedies obtainable thereby must be authorised in the Act . . . nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo. . .”

The Labour Act and the Amendment do not specifically provide for applications to the Labour Court for enforcement of certificates of settlement.

The Labour Court remains a court that technically has no “teeth” as long as it cannot independently serve its own papers and enforce its own judgments. The circumlocution tilts heavily in favour of employers because costs are involved at every stage of registration and enforcement of the decision of the Labour Court.

The Amendment introduces the concept of registration of certificates of settlement. This was never in existence in the past.

A number of times, employees often found themselves stuck while armed with a certificate of settlement, which they could not register as there was no such procedure under the old legal dispensation.

This addition is a positive development in the interests of expediting dispute resolution in the workplace.

What is the position if the parties fail to agree at conciliation? Let us look at this in detail in the next instalment.

LEGAL DISCLAIMER: The material contained in this article 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 article. 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, author, human capital trainer, business speaker, thought leader, law lecturer, consultant, coach and legal proctor (UZ). He has vast experience in employment law and has worked with several corporates and other organisations. He is also a notary public and conveyancer. 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]