By Wellington Chibebe
An article which was featured in the Herald Editorial dated 7 October 2010 with the title: “DYSFUNCTIONAL STATE OF ARBITRATION SYSTEM’’ cannot go unchallenged.
The Zimbabwe Congress of Trade Unions (ZCTU) is greatly disturbed by the unjustified scathing attack on the arbitration system, and the entire labour dispute resolution mechanism by one Isaac Mazanhi.
From a reading of the aforementioned article, it is crystal clear that Mr. Isaac Mazanhi is woefully ignorant of how the Zimbabwe labour dispute resolution system operates. It clearly further shows that Mr. Mazanhi shies away from reading law books, while others are busy researching and writing in depth articles.
His comments were heavily biased in favour of the employers and he was mute on the need for employers to pay employees a living wage. In any event, wage disputes cascade into arbitration because in most cases employer parties scuttle the collective bargaining process by flatly refusing to accommodate the employees’ demands.
To demonstrate his lack of knowledge about how labour arbitration operates in Zimbabwe, Mr. Isaac Mazanhi quoted Halsbury’s laws of England. Mr. Mazanhi and other likeminded should be enlightened that the arbitration system in Zimbabwe is not governed by the Halsbury laws of England but by the Labour Act [Chapter 28:01} as well as the Arbitration Act [Chapter 7:15], statutes which were passed by the parliament of Zimbabwe.
A closer look at Mr. Mazanhi’s comments clearly show that he wants employers to win arbitration cases at all cost, never mind the facts and merits of a given case. This clearly amounts to interference with the due process of law. It is common cause that employees have lost cases before arbitrators but Mr. Mazanhi chose to be mute about that.
Going by his comments, Mr. Isaac Mazanhi has exhibited himself as a dangerous Human Resources Manager who poses a serious threat to industrial relations not only at Willowvale Mazda Motor Industries but to the labour fraternity as a whole. No wonder why there are serious industrial relations problems at Willowvale Mazda Motor Industries.
For instance, Willowvale MAZDA Motor industries lost the case of Israel Fiya and 10 others LC /H/46/2010 at arbitration and at Labour Court for failing to comply with its own code of conduct. The likes of Mazanhi will then blame the arbitrator and the labour court other than managerial inept.
Mr. Mazanhi must be educated that arbitrators do not make their decisions from nowhere but that they base them on the evidence and submissions from the parties in line with the principles of natural justice. For a better understanding of how the arbitration system operates within the Zimbabwean legal framework, Mr. Mazanhi is referred to Munyaradzi Gwisai’s book, Labour and Employment law in Zimbabwe (2006) pages 277 – 283.
In any event, Mr. Mazanhi’s comments portray arbitration as an end in the labour dispute settlement machinery. That is wrong. In terms of section 98 (10) of the Labour Act, [Chapter 28:01] a party which is aggrieved by an arbitral award can appeal to the Labour Court on a question of law. In the same vein, an aggrieved party can approach the Labour Court for review in terms of section 89 (1) (d1) of the Labour Act.
Furthermore, Mr. Isaac Mazanhi’s comments borders on contempt of court or put simply, are a veiled attack on courts because he made unsubstantiated personal attacks on the professional integrity of Arbitrators when he made the following comments:
“Some arbitrators are perceived as pro – employees. For example the Arbitral Award given on October 26, 2009, nullified (on procedural grounds) Air Zimbabwe’s intention to retrench 409 workers and ordered the company to continue paying its workers full salaries and benefits”
It is common cause that the Air Zimbabwe case is currently pending before the Labour Court and the Supreme Court respectively and hence the matter is sub judice. That being the case, Mr. Isaac Mazanhi’s comments amount to interference with the independence of the judiciary.
In any event, on 20 May 2010, three ( 3 ) Labour Court judges declined to hear Air Zimbabwe’s appeal against the Arbitral Award being attacked by Mr. Mazanhi on the basis that Air Zimbabwe was supposed to comply with the Arbitral Award first and approach the court with clean hands. Mr. Mazanhi needs further education on the fact that matters which are before the courts must not be commented in the press and he needs to be strongly censored.
Similarly the Transport Industry award which was granted in May 2009, which Mr. Mazanhi attacks, was confirmed by the Labour Court on appeal. In essence Mr. Mazanhi is not only recklessly attacking Arbitrators but also judges of the Labour Court.
There is nothing wrong with constructive criticism but Mr. Isaac Mazanhi’s attack on the arbitration system can best be described as destructive criticism. He seems to be ignorant of the law, facts, and how arbitration proceedings are conducted. We are watching and we are sure that at that pace of ignorance, Willowvale MAZDA Motors Industry employees may soon, make a vote of no confidence on him.
It cannot be gainsaid that the arbitration system has greatly assisted in the expeditious resolution of labour disputes in Zimbabwe. That being the case, it would be unfair for a novice like Mr. Isaac Mazanhi, who does not have any qualification in arbitration and conciliation to seek to overthrow arbitration as a dispute resolution mechanism enacted by the legislature.
He seems not to be aware that arbitration is a success story and a system which many like him are still to learn. In countries like South Africa, their Labour Act provides for arbitration of labour disputes under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA).
The current crop of arbitrators in Zimbabwe is composed mainly of graduates from the Universities of Cape Town, Lesotho, Namibia, Witwatersrand and Zimbabwe, whose Faculties of Law , offers a Post Graduate Diploma in Law (Conciliation and Arbitration), as well as eminent labour lawyers . Arbitrators are developing labour jurisprudence in Zimbabwe.
It therefore defies logic for Mr. Isaac Mazanhi to castigate the arbitration system and portray it as if it is being handled by ignorant street walkers. In future Mr. Isaac Mazanhi is advised to be cautious before issuing statements which result in him treading the path of illegality. Furthermore he is encouraged to do a balanced research as opposed to mere ruble rousing.
Those who believe him, do so at their own risk. If Mr. Mazanhi needs to be educated in arbitration, we have no problem, in hiring for him, any one of the University of Zimbabwe, law students to give him tutorials on arbitration and conciliation.
We urge Mr. Mazanhi to display his qualifications, on his articles at least for his readers to know, because being an EMCOZ member does not mean he knows all. We have EMCOZ members who are knowledgeable and appreciate the efforts of the arbitrators to deliver justice and hence Mr. Mazanhi must not dent EMCOZ’s reputation as a social partner by making irresponsible press statements.
Wellington Chibebe, Secretary General, Zimbabwe Congress of Trade Unions (ZCTU).
