The Sunday Mail
Welcome back to our ongoing discussion on arbitration. A few weeks ago, we delved into the fascinating topic of arbitration.
We explored the distinction between voluntary and compulsory arbitration. If you missed our previous article, I encourage you to visit The Sunday Mail website and search for it to gain a comprehensive understanding of the subject matter we are about to delve into today.
Arbitration, as we previously discussed, is a method of dispute resolution that offers an alternative to traditional court proceedings. It involves the parties involved in a dispute agreeing to submit their case to one or more impartial individuals known as arbitrators, who will render a binding decision based on the evidence and arguments presented. This process can be either voluntary or compulsory, each carrying its own unique characteristics and implications.
Voluntary arbitration occurs when both parties willingly agree to resolve their dispute through arbitration. It is often chosen as a preferred method due to its flexibility, confidentiality and potential for faster resolution compared to litigation. Parties have the freedom to select their arbitrators, determine the rules and procedures governing the arbitration, and tailor the process to suit their specific needs.
On the other hand, compulsory arbitration, also known as mandatory or forced arbitration, arises when the parties are legally obligated to present their disputes for arbitration rather than pursuing litigation in court.
This form of arbitration is typically governed by statutory or contractual provisions that require certain types of disputes to be resolved in this way. While compulsory arbitration can offer benefits such as efficiency and cost-effectiveness, critics argue that it may limit access to justice and undermine individual rights.
Throughout our conversation, we will explore different aspects of arbitration under the new legal dispensation. So, whether you are new to the concept of arbitration or seeking to deepen your knowledge on the subject, join us as we embark on this enlightening journey into the world of arbitration.
Together, we will unravel its intricacies and shed light on its significance in today’s legal landscape.
Voluntary arbitration
Voluntary arbitration proceedings cannot be subjected to either an appeal or review under the Labour Act. Voluntary arbitration proceedings are governed by the Arbitration Act. In McKelvey v Abrahams & Anor 1989 (2) ZLR 251 (SC), Gubbay CJ at 264C-D said: “The object of arbitration, as expressed in para 13 of the Schedule to the Act, is to arrive at an award that is final and binding on the parties.
Thus, an award is not subject to appeal. It may be set aside on any of the four grounds. First, that it does not fall under para 13 as not being made in terms of the submission. Second, if the arbitrator has misconducted the proceedings, as envisaged in s12 (2) of the Act.
Third, where it has been improperly procured (vide the same subsection). Fourth, where the arbitrator’s mistake is so gross and manifest that it could not have made without some degree of misconduct.” See also McKenzie NO v Basha 1951 (3) SA 783 (N) at 786A-B.
The Arbitration Act is clear that the only court that has jurisdiction in those limited circumstances is the High Court, not the Labour Court, and expressly grants jurisdiction to the High Court. Article 34 of the Model Law provides recourse against voluntary arbitration awards.
The Act makes reference to “Dispute of right” and “Dispute of interest”. What do these terms mean? Is there a difference between these two? Let us deal with these questions in the next paragraph.
“Dispute of right” v “Dispute of interest”
There is a difference between a dispute of right and a dispute of interest. A dispute of right and a dispute of interest are two different types of wrangles that can arise in the context of labour relations. Here are the differences between the two:
Dispute of Right
A dispute of right is a legal claim to which a party in the employment relationship has an established right. A dispute of right also refers to a disagreement that arises when two or more parties have conflicting claims or interpretations regarding their legal entitlements. In this type of dispute, the focus is on determining who has the correct legal position or entitlement based on established laws, contracts or agreements.
Resolving a dispute of right often involves interpreting and applying relevant laws or legal principles to determine the rightful outcome. It is based on a legal or contractual right. The basis of an employee’s claim is that they have a legal right to something.
Here are examples of disputes of right in the workplace:
– Unfair dismissal disputes
– Unfair labour practice disputes
– Severance pay disputes
– Disputes over breach of contract or collective agreement
– Disputes over statutory rights such as the right not to be unfairly dismissed or subjected to unfair labour practices
Dispute of interest
A dispute of interest is a wrangle over employment matters to which a party does not have an established right. The focus of a dispute of interest is the creation of new rights. It is not based on any established legal or contractual right. Disputes of interest have a bearing on the creation of new rights such as higher wages or improved conditions of service
Below are examples of disputes of interest in the workplace:
– Wage disputes, such as a demand for a salary increase
– Disputes over changes to working conditions or benefits
– Disputes over creation of new rights, such as improved working conditions or benefits
In summary, a dispute of right is based on a legal or contractual right, while a dispute of interest is not based on any established legal or contractual right.
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 and legal proctor (UZ). He is also a notary public and conveyancer. He has vast experience in employment law and has worked with several corporates and organisations. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
