By Kae Matundu-Tjiparuro
The Labour Court is expected to be busy with its roll running into the second week of October this year, says the chairperson of this court, Leah Shaanika.
The court has been in full swing since the end of January and has since seen a pressing schedule, especially on Mondays when it hears various applications including applications for default judgments or rescissions.
Although there may be trials on Mondays this is only in exceptional circumstances as trials are usually designated for Tuesdays to Fridays. Before any case makes a run in the Labour Court, it is preceded by a conciliation process by the Labour Commissioner under what is referred to as Rule Six (6) Conference.
Among the cases the court has been dealing with are unfair dismissals and the unauthorised deductions of money by employers from the wages/salaries of employees. Some of the applications served before the court include those to compel respondents to abide by the ruling/order of the court.
In this regard, the court has lately started to go the route of contempt of court when any respondent is served with summons in the criminal court. The court also has been dealing with cases involving the demotions of employees, retrenchments and redundancies.
According to the chairperson, both private and public companies have been guilty of widespread violations of the rights of employees as provided by the Labour Act, now amended as the Labour Act of 2007, Act No. 11 of 2007. This has been particularly in terms of abiding by the law and complying with awards by arbitrators.
She says the court has been having particular problems with those representing companies and parastatals in terms of their legal standing with companies and parastatals mostly represented by less senior staff members. This raises the issue of their juristic competence.
In view of this, Shaanika proposes a forum to make these instances clear and make the general public aware in this regard and regarding the provisions of the Labour Law.
Among issues where awareness and education is needed are contracts of employment defining the benefits of workers, among others, which Shaanika says lack scope. One sticking point has been the problem of calculating severance pay of employees.
Shaanika thinks trade unions could be instrumental in education in this regard.
Construction companies feature regularly in the court in terms of the non-observance of the law and compliance with findings.
The security industry has also been problematic in this regard.
Some of the cases on the roll of the court have stood, for example, from 2004, 2006 and last year. Although the court could deal with cases faster if it had two chairpersons, she says the delay is not with the court but with the parties asking for more time to subpoena witnesses, etc.
Her objective for this year is a speedy resolution of cases. And she expects the Labour Act, now amended and gazetted for implementation in May, to be very helpful in her work. Although a lot still needs to be done, Shaanika thinks the orders and ruling of the court have been instrumental in creating the necessary awareness about the provisions of the Labour Act. If only to remind all parties concerned of their existence.
The court had 485 cases on its roll last year. Among the cases, which were finalised default judgments were passed in 29 of the cases, full trial judgments handed in 47 cases, 30 dismissed, 153 removed from the roll and 25 cases settled. Postponed cases totalled 191, 10 were withdrawn, 16 appealed to the High Court while 37 are pending in the High Court.
The Labour Court was established in terms of the Labour Act of 1992, Act 6 of 1992 and continues with its functions under this Act as amended by Act 11 of 2007. Under the Act the court is a division of the High Court and a judge appointed by the Judge President presides over it. This judge also chairs the Court’s Rules Board that advises the Judge President on the High Court’s rules, which regulate proceedings in the Labour Court. Two legal practitioners with expertise in and experience in labour law are appointed on this board.
The ministers of Labour and Justice also each appoint a representative to this board, while the Labour Advisory Council is represented by two people.
The court determines appeals from decisions of the Labour Commissioner, arbitration tribunals’ awards and compliance orders issued in terms of Section 126 of the Act. It also reviews arbitration tribunals’ awards, decisions of the Minister of Labour, the Permanent Secretary and the Labour Commissioner or any other body or official in terms of this Act or any other Act relating to labour or employment for which the Minister of Labour is responsible.