This paper is based on a research project done in the retail sector in Zimbabwe in the Bulawayo metropolitan province. The research noted that disputes between employees and employers unavoidably arise because of differing class interests. Because of the inevitability of these class disputes between labour and capital, there is need for the state to put in place labour dispute resolution mechanisms that are cost effective and also flexible in terms of procedure and speed. The Zimbabwe Labour Act (28.01), as amended, provides a framework for resolving labour disputes through arbitration. The research sought to investigate the effectiveness of the labour arbitration process in Zimbabwe. The three main criteria for evaluating effectiveness of arbitration, namely accessibility, speed and expertise, were subjected to an empirical test in the Zimbabwean context. The article concludes that the labour arbitration system in Zimbabwe is largely ineffective due to reasons of prohibitive costs, complexity of procedures and the perceived incompetence of arbitrators. The lack of transparent arbitrator appointment criteria also compromises the arbitration system in Zimbabwe. The research further revealed that, though arbitration can serve a very good purpose as an alternative to costly and lengthy litigation, its effectiveness relies to a great extent on its flexibility and transparency as well as the qualifications, expertise and integrity of the people who preside over it.
The history of the conflictual relationship between master and servant dates back to ancient times. The industrial revolution further polarised the class interests of the privileged owners of the means of production and the less fortunate providers of labour. Because of these conflicting interests, industrial disputes became inevitable. However, the privileged status of owners of capital put them in a more advantageous position that enabled them to subjugate the workers. Power of this class was exercised through the manipulation of the ‘stick and carrot’ technique as well as the court system, which for all intents and purposes, represented the voice of capital. The system of colonialism also perpetuated the stratification system that favoured the owners of capital. In the colonised territories, the court system was used more as an instrument of civilised repression than as a fountain of justice. As a result, it could not be relied upon by the working class. However, the twin developments of the unionisation of the labour force and the international democratisation of workplaces gave impetus to a reordering of industrial relations. These developments significantly leveraged the influence of labour and empowered its voice in employment relationships.
Because labour movements fought alongside revolutionary movements, the attainment of independence by formerly colonised states such as Zimbabwe ushered in an industrial order in which the labour movements gained significant power and influence over capital. This resulted in the repeal of oppressive legislation and substituting it with a structure that gave both capital and labour an equal footing in managing employment relationships. The new order recognises the fact that industrial disputes arise, by and large, over interpretation of employment contracts and conditions of service at shop floor level and hence requires a system that facilitates mutual engagement. The adjudicatory court system is not only costly and lengthy, but also not ideal for reconciling shop floor disputes. Arbitration came in as a necessary substitute that gives disputing parties an opportunity to settle their differences in an informal, flexible and non-adversarial manner.
However, the arbitration process has its challenges. Though it serves a very good purpose in resolving labour disputes, it has to be practised by qualified people with the necessary expertise and integrity. It also has to be easily accessible to an offended party and able to resolve disputes in an expeditious manner. The system of appointing arbitrators also has to be highly transparent and well coordinated. It is within this context that this paper is presented, the goal being to examine the effectiveness of the labour arbitration system in Zimbabwe.
Historical development of labour arbitration systems in Zimbabwe
The history and development of labour arbitration systems in Zimbabwe cannot be understood fully without analysing the legal statutes that regulated labour relations in both pre- and post-independence Zimbabwe. The state’s influence on the industrial sphere shaped the character of labour relations, particularly the conduct of dispute resolution. In the early stages of colonialism, the Rhodesian colonial government through the Masters and Servants Act (MSA) of 1901 specifically targeted the control of labour (Cheater 1991). This piece of legislation did not provide any platform for industrial bi-partyism as its essence was to curtail the freedom and independence of the working class.
Arbitration law was first introduced through the 1934 Industrial Conciliation Act. However as Gwisai (2007) notes, it remained a secondary method hardly used throughout the colonial period. As the industrial base grew, a series of reforms culminated in the enactment of the Industrial Conciliation Act (ICA) of 1945 in an attempt to exert more control over employment matters. As Cheater (1991) notes, the motive behind the ICA was the state’s perception of conflict between labour and industrial capital. The state’s view was that this perceived conflict required a system of bureaucratised adjudication. Although the state had the ultimate responsibility over the stability of the industrial sphere, it ensured that the negotiations and outcomes were between parties to the disputes.
Cheater (1991) observed that the ICA established a two-tier adjudication hierarchy, one dealing with registration of trade unions and employment associations and the other dealing with resolution of industrial conflict through bureaucratised procedures in the form of Industrial Tribunals, Industrial Councils and Conciliation Boards. The representation on these bodies embraced both labour and capital. However, since the ICA regarded employment and dispute resolution as strictly private affairs (Cheater 1991), the disproportionate weight of industrial capital over labour during this period meant there was no meaningful participation of labour in resolving industrial disputes. As a result, the outcomes of conciliation and arbitration of labour disputes predominantly favoured employers. Chapter 3 of the ICA provided that the Act would not bind the state, thereby leaving the Minister of Labour incapacitated from actively intervening in industrial matters to the detriment of workers whose status and power were inferior to industrial capital.
Though it remained a hindrance to participative dispute resolution, the ICA at least recognised the status of labour and its relevance in promoting and safeguarding industrial harmony. The post-independence government realised the need to politicise labour relations in recognition of the existing class antagonism. With the promulgation of the Labour Relations Act (LRA) of 1985, arbitration became the preferred method of settling collective labour disputes in order to avoid collective job actions. The LRA brought in a new dispensation to the labour relations sphere. Apart from clearly defining the fundamental rights of employees and unfair labour practices, it went further to provide regulations governing conditions of employment and other related matters which was a revolutionary departure from the colonial legislation.
Dispute resolution was entrusted to state functionaries who, by and large, were an extension of the responsible Minister’s political power. Conciliation and arbitration decisions by Labour Officers and Industrial Relations Boards (IRBs) largely reflected the political and economic interests of the state. The autonomy of these adjudicatory structures was limited under the LRA principally because of the overall political authority which the appointing Minister exercised. Section 117(1) of the LRA provided that, where compulsory arbitration was ordered by a Senior Labour Relations Officer, the Minister had to be notified without fail. The Minister had the sole responsibility and power to refer the matter to the Labour Relations Tribunal (LRT) or to appoint an independent mediator. This made the whole system of arbitration and dispute resolution subordinate to political control and far removed from the shop floor.
With the increasing unionisation of the labour force and the changing political landscape, both locally and globally, greater pressure was exerted on the government to reform its labour legislation for it to comply with international best practices. A series of legislative repeals and amendments of the LRA culminated in the enactment in 2003 of the current Labour Act (LA) Chapter (28.01) as amended. The LRA amendments of 2003 and 2005 which gave rise to the current Labour Act, further refined conduct of labour arbitration by reinforcing its use in settling disputes of interests. This act provides for more meaningful worker participation and less political control of the industrial relations sphere by the state. The LA significantly amended sections 93 and 98, and repealed sections 95, 96, 97, 99 and 100 of the LRA Chapter 28.01 which collectively dealt with the power and conduct of Labour Officers and arbitration procedures. Whereas sections 93, 95 and 96 of the LRA gave powers to Labour Officers and Senior Labour Officers to make final decisions on labour disputes, the LA reduced the authority of these government bureaucrats to merely conciliate disputes.
The current labour arbitration practice in Zimbabwe
As already mentioned, the LRA and the LA, as amended, ushered in a new dispensation on labour dispute resolution in general and arbitration in particular. As already alluded to in the preceding pages of this paper, the responsibility of handling arbitrations is entrusted to the hands of arbitrators appearing on a list compiled by the Minister of Labour and Social Welfare.
Sections 93 and 98 of the Labour Act provide that when a Labour Officer or Designated Agent of a National Employment Council (NEC) has failed to conciliate a dispute and issues a certificate of no settlement, he appoints an Arbitrator after consulting the most senior Labour Officer in his region of jurisdiction. Unlike in other jurisdictions such as South Africa, in Zimbabwe, the arbitrator is not an institution. The appointed arbitrator is mandated to arbitrate the dispute in terms of the Zimbabwe Arbitration Act (17.05). Section 90A of the Labour Act makes it explicit that the arbitrator shall not be bound by the strict rules of evidence relating to its admissibility in proceedings. (Figure 1 shows the labour arbitration flow diagram under the Labour Act (28.01)).
Areas that differ from jurisdiction to jurisdiction relate to the payment of arbitration costs and the timelines prescribed in the process. In Zimbabwe (Mariwo 2008; Gwisai 2007), as in North America (Trudeau 2002) and China (Shen 2006), the arbitration system provides that the costs are borne equally by the disputants. In other regional jurisdictions like South Africa, Lesotho and Swaziland (Bhorat et al. 2009; Khabo 2008), the costs of the arbitrator are borne by the state. In the Zimbabwean case, there are no regulations governing the determination of costs. Whereas elsewhere, systems provide for timeframes within which disputes are resolved by arbitration, the Zimbabwean system is silent in this regard. The Labour Act does not give time prescriptions on arbitration as it does in other appeal processes. Consequently, there are many arbitration cases pending in the security industry in Zimbabwe, as was observed by Mariwo (2008).
In a significant departure from the previous legislation, the Act brought with it a new system that makes it easy for disputants to resort to arbitration for resolving labour disputes. The role of Labour Officers has been confined to conciliation, so that they could no longer wield considerable authority in deciding cases. Gwisai (2007) opined that the state had probably realised that the old system of dispute resolution was unnecessarily laborious. The new legislation whittled down the Minister’s political power and involvement in the arbitration of labour disputes. Whereas section 100 (subsections 1 and 2) of the LRA empowered the Minister to refer a dispute to the LRT for arbitration or appoint a mediator, the LA shifted that responsibility to the less political civil servant (the Labour Officer). The Labour Officer or the Designated Agent now has authority to appoint an Arbitrator selected from a list of arbitrators prepared by the Minister in consultation with the President of the Labour Court (Section 98, subsections 5 and 6). In allowing for further democratisation of labour relations, Section 98(4), unlike the LRA, provides that the Labour Officer or Labour Court in referring a dispute to compulsory arbitration ‘shall determine the arbitrator’s terms of reference after consultation with the parties to the dispute’.
This is a major departure from the LRA which empowered the Senior Labour Officer to state the issues which in his opinion had to be decided by arbitration. This new dispensation on determination of terms of reference is significant in a number of ways. It is the parties themselves who define, in their own language, the points of difference and the actual dispute elements to be arbitrated. This flexibility ensures that the arbitrator is appropriately guided and decides on the exact issues that have to be decided about. In addition, the disputants mutually agree on what they want the arbitrator to decide about. As a result, there is no ambiguity on the nature of the dispute or the elements for which the disputants seek a resolution. See the flowchart below.
Figure 1: Dispute Resolution Flow Chart.
The arbitration system under the preceding legislations was open to abuse and manipulation by disputants. Gwisai (2007) noted that the LRA created conducive conditions for achieving finality to litigation as any disputant could appeal against an award on frivolous grounds to buy time or evade culpability. This state of affairs rendered arbitration largely irrelevant to dispute resolution as the majority of the awards ended up being contested in the higher courts. As a result, the Labour Tribunals were flooded with cases that arbitration was expected to have resolved, thereby clogging the judiciary system. In order to arrest this administrative malaise, the Labour Act refined the appeal mechanism to make it difficult for disputants to appeal on frivolous grounds. Section 98(10) of the LA stipulates that ‘an appeal on a question of law shall lie to the Labour Court from any decision of an arbitrator’. Alternatively an appeal for review of an arbitration award can be lodged with the High Court under the strict provisions of the ‘Model Law’ of arbitration. These concepts will be discussed in turn.
Question of law: This term is not defined in the LA itself, but the Supreme Court in Muzuva v United Bottlers 1994 ZLR 217(S) adequately defined it in several simplified ways. According to this judgment, as summarised by Gwisai (2007:285), a question of law was held to mean:
- a question which the law itself has authoritatively answered to the exclusion of the right of the tribunal or court to answer the question as it thinks fit in accordance with what it considered to be the truth and justice of the matter;
- a question as to what the law is;
- a question which is within the province of the judge instead of the jury;
- misdirection on the facts or evidence before the arbitrator that is ‘so outrageous in their defiance of logic as to amount to serious misdirection’;
- a case where the making of an award is in violation of grounds specified under article 34 of the Model Law.
Model Law: The model law on arbitration is a legislative text that the United Nations Commission for International Trade Law (UNCITRAL) recommends to states for enactment as part of their national law. Article 34 of the Model Law (United Nations 1994) states that an arbitral award may be set aside by an appropriate court of appeal in the country concerned if:
- one of the parties to the agreement ‘was under some incapacity’ or the agreement was not valid under the law;
- the aggrieved party was not given proper notice or could not properly present its case;
- the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;
- the composition of the arbitral tribunal or the procedure was not in accordance with the agreement of the parties;
- the subject matter of the dispute is not capable of settlement by arbitration under the law of the state; or if
- the award is in conflict with the public policy of the state.
These provisions were enacted into the Labour Act with the intention of making arbitration achieve its goal of bringing final and binding resolution to labour disputes without involving the courts. The act has achieved this goal with minimal success as labour cases in Zimbabwe still find their way into the adjudicatory courts in high numbers, a sign that the arbitration system still faces challenges.
Theoretical and conceptual framework
According to Hagglund and Provis (2005), labour arbitration can be conceptualised as the resolution of disputes outside the litigation court system when neutral and unconnected third parties come in to resolve disputes by making determinations which bind the parties. Arbitration recognises the fact that court proceedings are too technically complex for resolving industrial disputes. Shen (2006) further observes that labour disputes essentially arise over interpretation of contracts of employment and conditions of service, and for these reasons, they should, as much as possible, be settled outside the courts. In most jurisdictions, arbitration is preferred as an alternative to litigation in the courts where proceedings are technically complex.
Theoretically, the concept of labour arbitration, as conceptualised by Sally Falk-Moore (1965), cited in Mumme (2008), derives from the concept called ‘social semi-autonomy’ which deals with the operation of social and quasi-legal processes with some degree of autonomy from the state’s judicial institutions. Mumme (2008) postulates that Falk-Moore’s idea was to move away from the prevalence of the state as the centre of social study in which the law is viewed as hierarchically superior to society.
It was observed by Falk-Moore that there are areas of social life that have the power to order their own sphere and operate in the shadow of state law. One such area is the employment relations domain where contractual relations are said to create a ‘law of the shop’. Because these are laws of interactional and relational engagements, Falk-Moore argues, the role of the state law in these spheres is limited in its capacity to regulate relations. It is in this context that labour arbitration in Zimbabwe can be conceived in this article.
Gross (2008), cited in Slinn (2010), argues that arbitration is a departure from the traditional concept of legal centralism, a concept that puts the state at the centre of dispute resolution through the courts. Legal centralism has been criticised for being insensitive to the feelings of its subjects. Clarke and others (2008) argue that pursuit of litigation in resolving labour disputes cannot satisfactorily achieve the desired ends. In arguing the case for labour arbitration, they posit that the work place is the real playground for employment relations issues where class differences can be fully understood. In the same context, labour arbitration is conceived by Mumme (2008:6) as:
a method of dispute settlement that escapes from the formality and entrenched class differences of the state’s legal system, focused on implementing the self governing rules of workplaces and the ongoing relationship of the parties.
Arthurs (1999), cited in Mumme (2008), further supports this legal pluralist approach arguing that labour arbitration cannot operate on its own in isolation from the state’s legal systems. There has to be a linkage between shop floor rules and the state legal system for easy regulation of employment relationships.
Giving further support to the legal pluralist view, Howlett (1967) argues that for arbitration to command respect and facilitate the enforceability of its decisions, it must take a sufficient role in interpreting the general law of the state. Therefore arbitration has to work within the state’s legal framework and distinctively outside the centralist state court system. The view point taken in this paper’s analysis of the arbitration system in Zimbabwe as enunciated in the Labour Act squarely falls within the realm of the pluralist approach. The legal pluralist approach as described above was termed by Summers (1967), cited in Mumme (2008), as the ‘Industrial policy-maker’ model in view of its approach that advances the needs of industrial peace on behalf of the state.
Criteria for arbitration effectiveness
Scholars have not had a unified measurement criterion for the effectiveness of an arbitration system. This is so because, invariably, scholars give emphasis to different parameters. Whereas, traditionally, most scholars place emphasis on statistical measurement based on the statistics of the case outcomes, more contemporary thinkers like Trudeau (2002) came up with a non-statistical framework. The framework looks at three factors that can be used as yardsticks in determining effectiveness of a system.
The first factor is accessibility. Arbitration is accessible if parties have full knowledge of how it works as well as how readily the facilities can be accessed. This includes the knowledge of the procedures and the system in general. Enabling legislation also plays a part in making the system accessible. According to Trudeau (2002), accessibility further refers to the ease with which disputants can resort to the process without the complication of technical considerations and complex legal paperwork. Arbitration is also not accessible if the costs of resorting to it are prohibitive.
The second factor is speed. The speed with which a system operates in dispensing justice is a paramount feature of justice delivery and a key feature of effectiveness. According to Trudeau (2002), the system of dispute resolution should not be cumbersome. It should allow for expeditious resolution of disputes by not lengthening the dispute resolution process. Justice delayed is justice denied.
The third and last factor is expertise. Expertise means the competency of the principal actors in the arbitration process. The principal actors presiding over the process should be unquestionably competent and experienced in the field in which they operate. They should also be disinterested and neutral parties (Bishop and Reed 1998). Decisions of arbitrators should not end at being merely reasonable; they should further satisfy the requirement of fairness.
The principle of finality to litigation is realised if justice is perceived by parties to have been administered fairly. The judiciousness of a decision determines whether parties accept it. It therefore goes without saying that the decision to appeal against an award by any of the parties is directly related to their perception of its judiciousness. A decision which is perceived to be unjust and unfair is likely to be appealed against, thereby prolonging the dispute. Therefore arbitration calls for high levels of competency and expertise on the part of the arbitrators.
In Zimbabwe, arbitration judgments are protected by both the Labour Act and the Model Law under the Arbitration Act. Recourse to appeal or review of an arbitration award is very restricted in the Zimbabwean statutes. The grounds upon which a disgruntled party can appeal or apply for a review at the Labour and High Courts respectively are very restricted and thus a formidable onus rests on a party to justify such action. This means that, if arbitrators do their homework properly and operate according to the rules, their determinations can in most cases effectively bring finality to litigation. One of the fundamental expectations in an arbitration process is the religious adherence to procedures. In the Zimbabwean context, arbitrators are expected to be conversant with provisions of the Model Law as enunciated in the preceding paragraphs. Failure to take cognisance of these has the potential effect of rendering the whole process academic.
In this article, the researchers adopted the above framework in analysing the effectiveness of the labour arbitration system in Zimbabwe. The above three factors and their attendant elements were used as barometers of assessment.
A descriptive research design was employed in the research inquiry and it yielded several findings which the ensuing paragraphs present and discuss. According to Marsh (1982:125), descriptive research answers the question: ‘what is going on’. He further adds that ‘competent description can challenge accepted assumptions about the way things are and can provoke action’.
Descriptive research design is a scientific method which involves observing and describing the behaviour of a subject without influencing it in any way. Descriptive survey allows the researcher to generalise from a sample to a population so that inferences can be made. Data collection techniques under this design include the administration of questionnaires to respondents, interviews and perusal of secondary data sources. Descriptive design has the advantage that the subjects are observed and interviewed in completely natural and unchanged environmental settings (Meloy 2002). In these settings, there are fewer chances of external factors influencing responses. Data collection techniques are also flexible. However, one distinct limitation of descriptive research, cited by many researchers and scholars, is its inability to produce results that are replicable in other settings as experiments do. There is also little room for manipulation of variables, which makes statistical analysis of the data difficult.
However, despite the above shortcomings of descriptive research, the researchers found the method most ideal for conducting this research. The research problem was centred on a social and quasi-legal legal system in which people are the dominant subjects. The evidence required to answer the research questions and address the research problem influenced the choice of research design.
The data were collected from carefully selected samples. According to McMillan and Schumacher (2000), a sample consists of individuals selected from a larger group of persons called a population. It is a principle that the sample can then be used to draw inferences about the complete group. According to Sarantakos (2000), the use of sampling in qualitative research is relatively limited. The purpose of sampling is to obtain research information from a sample of sufficient size to represent the research population.
De Vos and others (2002) define a research population as any group of individuals that have one or more characteristics in common that are of interest to the researcher. Creswell (2003) concurs with this definition when he argues that a research population is a collection of items of interest in research. The population represents a group that a researcher wishes to generalise the research to. Research populations are often defined in terms of demography, geography, occupation, time, care requirements, diagnosis, or some combination of the above. Lofland and Lofland (2002) conceptualise a research population as the totality of persons, events, organisational units, case records or other sampling units with which a research problem is concerned. In this study, the target population was the Bulawayo metropolitan retail sector managers as company representatives, retail sector workers and Commercial Workers’ Union of Zimbabwe (CWUZ) union officials, labour officers and designated agents as custodians of the labour laws, and arbitrators as experts in the subject matter.
In a research project where sampling is used, though all individuals or units within the research population have an equal chance of being selected, not all of them are subject to observation and measurement because of time and cost constraints. The researcher has to select a representative sample of a manageable size. In this study, questionnaires were administered to twenty managers, forty employee representatives and one hundred employees – all drawn from different retail companies. The researcher also interviewed two labour officers, one designated agent, two trade union officials and one arbitrator. In sampling the research subjects, the researcher used various methods.
One of the methods used was convenience sampling. This method makes use of contacts that are easy to reach. The sample was targeted at respondents that were convenient for the researchers. It also involved the selection of subjects where the researchers had direct and easy access. This method was used for the selection of managers for the reason of saving on time and cost of data collection.
Use was also made of judgmental sampling. This method involved selecting a group of people because they had particular traits that the researchers wanted to study. It also involved the assembling of a sample of persons with known or demonstrable experience and expertise in the area of focus. Often, such a sample is convened under the auspices of a ‘panel of experts’ (Trochim and Donnelly 2006). In other words, the researchers used their expert judgement about who to include in the sample frame. This choice was informed by the evidence required to answer the research questions. The researchers used this method to sample Workers Committees and labour union representatives because of their involvement in labour dispute settlements. The method was also used to target labour officers, designated agents, and arbitrators because it was the best way to elicit the views of persons who have specific expertise in labour relations issues.
In any research, the quality of data is directly related to the quality of the instruments used to collect the data. Data are the facts, figures and other materials, past and present, that serve as the basis for study and analysis. In other words, they are the raw materials for analysis to draw specific inferences on issues and problems. According to Yin (2006:29), the research question calls for evidence that answers the questions or theory in a convincing way. The data collection instrument should be appropriate for the purpose, that is, the questions it asks and the experiences it examines should coalesce with the researchers’ research problem. In this study, the researchers used two main data collection methods namely, interviews and questionnaires. Questionnaires were used on managers, workers committees, employees and the arbitrator while interviews were used on labour officers, the designated agent, union officials and again on the arbitrator.
Questionnaires were chosen for the identified sample because of their advantage of ensuring privacy and anonymity of respondents. A questionnaire does not reveal the identity of the respondent, thereby ensuring that the responses are given freely and without any fears of identification. It was also cost effective to use this method of data collection compared to other methods because of the numbers of respondents involved. A questionnaire is also able to extract very rich data that is undiluted by the manipulation of the research setting or environment. Respondents were contacted in their natural settings. The researcher ensured that the research questions were clear, unambiguous and written in simple language. Interviews were also employed for the sample categories stated above because the researcher wanted to probe further into feedback obtained from the questionnaires.
The research sought to explore the effectiveness of the arbitration system using a framework propounded by Trudeau (2002) as discussed in the preceding paragraphs. The framework, that encompasses accessibility, speed and expertise as yardsticks for measuring effectiveness, was subjected to an empirical test in this research and the findings are reflected in the paragraphs that follow.
It was found that both employers and employees largely recognised and acknowledged the existence of arbitration procedures in labour dispute resolution: 71% of employer and 68% of employee respondents professed knowledge of the arbitration process. More than 50% of both employer and employee respondents also agreed that arbitration procedures were employed in resolving disputes in their respective organisations. In fact, they both acknowledged that arbitration procedures were enshrined in their codes of conduct. However, their differences lay in their levels of understanding of the procedures. Most (60%) of employee respondents pointed out that they did not understand the procedures well, and raised questions on whether, against this background, the process could achieve the desired ends. This observation calls for the effective training of employees in this area.
The cost of arbitration to parties is a fundamental determinant of the accessibility of the arbitration system. Where the cost of arbitration is prohibitive, it becomes a barrier to accessibility. Whereas a slight majority of employers believed that the cost of arbitration was affordable, 71% of employee respondents believed that the cost was unaffordable and therefore prohibitive to arbitration accessibility. This finding points to a problem of class differences based on financial means. Given that parties to a dispute share the costs of arbitration on a 50-50 basis, it goes without saying that the pricing of arbitration services unfairly favours employers who have a better financial footing than employees. This may create an unenviable situation where unscrupulous employers abuse their financial advantage by frequently and deliberately declaring disputes in order to squeeze employees financially. This finding calls for a more flexible arbitration system that does not disadvantage the weaker party.
The research findings also noted that the absence of arbitration fee guidelines lends itself to abuse and profiteering on the part of arbitrators. When there is no legislated fee structure, arbitrators may be tempted to reap rich pickings from disputing parties especially where big companies are involved. The research also found that in Zimbabwe the arbitrators arbitrarily fix their fees without even negotiating with the parties. This inevitably inflicts heavy burdens on the disputing parties to the extent that the whole system may become a costly expedition. This tends to restrict access of parties to the arbitration process, and makes arbitration in Zimbabwe largely inaccessible.
Whereas other researchers such as Mariwo (2008) bemoaned the delays encountered in resolving disputes through arbitration in the private security sector, the research under review found that both employers and employees were satisfied with the time it takes to conclude arbitration cases. This is a significant finding because in the Labour Act 28.01, there are no time prescriptions on arbitration cases. However, although the concluding times were given a thumbs up by the respondents, in the majority of cases, arbitration did not bring finality to the disputes. It can be inferred from these findings that speed on its own does not necessarily render a process effective. However, the above notwithstanding, some scholars such as Trudeau (2002) argue that speed is a positive factor in the resolution of disputes. This paper however argues that speed of process without resolution of the underlying dispute is meaningless. The concluding of arbitration cases can only be a positive development if the outcomes bring finality to the underlying dispute. In as much as arbitration processes are expeditious, they may run the risk of being useless motions which do not yield the result that they were intended to yield. Speed has to be accompanied by substantive relevance of the process for it to be a positive indicator of effectiveness.
The competency of arbitrators is paramount in making arbitration effective. The research found that the majority of both employers and employees did not have confidence in the competency and integrity of arbitrators. The majority of employers (65%) believed that arbitrators were almost always biased in their judgments whilst 68% of employees said they were not prepared to accept any arbitration rulings against them. As a result of this negative perception, both employers and employees believed that the arbitration system was not a conclusive process of dispute resolution.
Most employers also felt that most arbitrators did not pay due regard to the financial circumstances of companies. The majority of employers viewed arbitrators’ decisions on conditions of service matters devoid of sensitivity to the financial predicaments of companies, and they cited the problem of a mismatch between an organisation’s affordability and the awards made by arbitrators. Other respondents from both the employer and the employee sides also pointed out the possibility of arbitrators’ lack of independence from improper influences. Respondents further pointed out the vulnerability of arbitrators to conflict of interest where they had a financial interest in the outcomes of some cases.
The above findings point to a very negative picture of arbitration in Zimbabwe. The intention of legislators in crafting the arbitration procedures was to allow swift administration of justice and resolution of disputes. Section 2A subsection 1(f) of the Labour Act (28.01) provides that the purpose of the Act is:
to advance social justice and democracy in the workplace by … securing the just, effective and expeditious resolution of disputes and unfair labour practices.
An analysis of the Act’s purpose reveals that the intention is to, as much as is practicably possible, bring finality to labour disputes within the confines of labour dispute settlement structures. That is why, for instance, section 98(10) of the Act restricts the appeals against awards to only a narrow scope of a question of law. A question of law eliminates factual arguments which often dominate proceedings at arbitration level. While a party dissatisfied with an arbitration award may apply for a review by the High Court in terms of Section 34(3) of the High Court Act, the grounds of review are very narrow and technically restrictive. As Gwisai (2007) observed, the party applying for the review of an arbitration award has a formidable onus to satisfy the statutory criteria. The author further observed that the main bases for reviewing awards are those pertaining to procedural fairness or to a very narrowly defined concept of public policy.
The fact that, in spite of the existence of these legal gate keeping clauses to prevent unnecessary appeals or applications for review, arbitration awards have largely been successfully challenged in the higher courts exposes the weaknesses and shortcomings of arbitrators. This fact on its own is a serious indictment against the quality and credibility of arbitration rulings. It can be safely inferred from the findings of this research that most arbitrators are largely incapable of making judgments which meet the intentions and purposes of the Labour Act. The fact that most appeals and applications for reviews are admitted in the Labour Courts and High Courts respectively, point to the fact that the judgments are probably fraught with injudicious inconsistencies and gross misdirections. If the end product of the arbitration process is such that it does not yield the outcome that the process intended it to yield, then it is undoubtedly ineffective.
Appointment of arbitrators
One of the shortcomings that the research uncovered was that there were no clear guidelines on the appointment of the arbitrators. Both employers and employees believed that the latitude of discretion conferred on the labour officer in appointing an arbitrator was too wide and gave rise to the possibility of favouritism and collusion. The Labour Act (28.01) does not provide the specific statutory guidelines for appointing arbitrators save for the provision that the person has to appear on the register approved by the Minister of Labour. This lack of clear guidelines inflicts a heavy blow on transparency.
The subject of arbitrator appointment has generated a lot of debate in the international arena. Wendy (2002) reveals that though there are various approaches used by different jurisdictions on the appointment of arbitrators, there are underlying similarities, particularly in the criteria employed. The near universal attributes considered include the arbitrators’
- expertise in their own fields
- record of good judgment
- specialised knowledge
- knowledge of applicable procedures.
Another perspective on the appointment of arbitrators relates to their qualifications. Though most jurisdictions do not categorically specify that the prospective candidates be lawyers, the underlying language assumes that such people should have legal knowledge. Wendy (2002) made an observation that most jurisdictions tend to assume that a lawyer or legally qualified person has the ability to conduct arbitration in accordance with the rules. This assumption is premised on the fact that the enforceability and validity of arbitrators’ decisions are reviewed by judges. Other jurisdictions are very explicit when it comes to qualification criteria for arbitrators. The New South Wales Bar Association, for example, explicitly states that applicants for arbitrator appointments should be lawyers of seven years of good standing while the Spanish Arbitration Act (1998) also stipulates that arbitrators should be lawyers.
The most critical aspect to be considered when appointing arbitrators, which the Zimbabwean arbitration system misses, is the consideration of conflict of interest. In Singapore, the SIAC conducts an audit for possible sources of conflict of interest so that the arbitrator appointed in any given case is not only independent and impartial but also perceived by parties to be so (SIAC Practice Notes 2007). Parties’ perceptions of the independence and impartiality of an arbitrator have a strong bearing on the acceptability of awards.
This research recommends:
- That employers invest in the capacity building of employees on dispute resolution procedures. Amendment of the Labour Act to make it compulsory for employers to fund the said capacity building exercise will be most ideal.
- That the government regulates and gazettes the arbitration fees to make them more affordable instead of prohibitive.
- That the government crafts rigorous admission criteria for arbitrators which should not only consider qualifications but also other factors such as an individual’s maturity, professional standing, specialised knowledge, record of good judgment and public profile. The relevant ministries should come up with a manual for arbitrators which should include all facets of industrial life such as finance, production, profitability indices and labour law among others. This is necessary to ensure that arbitrators understand the context of cases so that they make judgments that are sensitive to organisational realities.
- That arbitrators go through a rigorous accreditation system involving examinations and public interviews that are administered by a panel of eminent persons comprising retired judges, captains of industry and labour economists so that only men and women of integrity are accredited into the arbitrators’ pool.
- That the arbitrary appointment of arbitrators by labour officers be corrected by a piece of statutory regulation.
- It is suggested that the responsible ministry draws up statutory guidelines for appointing arbitrators. The guide should clearly specify that arbitrators can only handle matters whose nature of dispute lies in their area of expertise, experience and qualifications. The appointing authorities should also strive to conduct mandatory audits to clear the prospective appointee of any possible conflict of interest or circumstances which may lend credence to parties’ perceptions that the appointee is not independent and impartial.
- That the current arbitration system be overhauled and replaced with a unified statutory agency. This entails setting up a state functionary in the mould of the South African Commission for Conciliation, Mediation and Arbitration (CCMA). The advantages of this suggestion are many. An agency will have permanent arbitrators who, like judicial officers, are far removed from the politics of the shop floor. Permanent status guarantees continuity, fosters professionalism and leads to continuous improvement. Government funding of this agency will inevitably promote neutrality of arbitrators as there will be less chances of them having financial interest in the outcome of the cases. State funding also removes the cost burden from the parties, especially employees. A government agency will also meticulously sift through cases to weed out malicious litigations, compile statistics and set standards for the advancement of industrial harmony.
It is apparent that the arbitration system in Zimbabwe is largely ineffective due to challenges around arbitrator costs, complex procedural technicalities and the perceived lack of integrity of the arbitrators. The research therefore leaves room for further research.
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Laws referred to:
- The Rhodesian Industrial Conciliation Act (1945) The Rhodesian Masters and Servants Act (1901)
- The Zimbabwe Government Guide to the Labour Relations Act (1997)
- The Zimbabwe Labour Act Chapter 28.01 (2006)
- The Zimbabwe Labour Relations Act (1985)