The Zimbabwean ADR Explained

1. Dispute Resolution Mechanisation In
Zimbabwe; known as the
Alternative Dispute Resolution (ADR)
By T.Chiunya

2. Question: Giving practical examples explain the dispute resolution
mechanisation in Zimbabwe.
Jurisprudentially , a dispute only arises when two parties (employer and employee) are in
disagreement or conflict over matters concerning employment which is governed by the Labour
Relations Act of 2002. In the business environment disputes emanate when the employer – employee
expectations are not met by either parties. Disputes are also triggered by breach of the written (explicit)
contract and the psychological (implicit) contract.
Employer-employee relationship is sealed by mutually agreeing on promises and conditions based on
the contract. These working conditions include the remuneration, emoluments and promises such as a
bonus after attainment of set targets and promotion due to good workmanship. On the other hand the
employee promises to give service in order to meet the set objectives. When either party fails to meet
what is expected a dispute then arises.
Types of Disputes.
• Dispute of right: refers to disputes about the application or interpretation of an existing law or
collective agreement. (alleged vindication of an existing legal right or standard, such as failure to
pay the correct rate of wage or salary)
• Dispute of interest: arise from failure of collective bargaining; e.g when parties’ negotiations for the
conclusion, renewal, revision or extension of a collective agreement end in a dead lock. (Parties
would be seeking either to establish new rights or obtain the best bargain under the existing
market and economic conditions; that is seeking something which one has no legal right to obtain.)

3. Alternative Dispute
Resolution process
Ministry of
Labour
Officers
NEC
Designated
Agent
Conciliation
Labour
Court
Labour
Court
Arbitration
Award
Supreme Court
High Court

4. Dispute resolution in Zimbabwe
In Zimbabwe the labour laws do not preclude the disputants from solving their disputes outside
the court system. Business people do not want to lose time litigating in the courts as such is
expensive.
An Alternative Dispute Resolution (ADR) is much preferred in business communities.
• ADR serves as an alternative to litigation through the courts for resolution of disputes; this
generally involves the intercession and assistance of a neutral third party.
• It is a system of dispute resolution which avoids the needs for public proceeding in a court of
law. It places informality in dispute resolution
In terms of section 93 of the Labour Relations Act of 2002 a matter maybe dealt with through
Conciliation, Arbitration and then the Labour Court. These methods are alternatives for
adjudication by the ordinary courts.
 There is no ADR in government services. This is because the Labour Act does not apply on all
workers whose conditions of employment are provided for in the constitution. These are
covered by the Public Service Act and the Health Service Act; other group of workers not
covered include the army, police and the prison service.

5. Conciliation is the practice of bringing together the parties in a dispute with an independent third
party so that the dispute can be settled through a series of negotiations
• In Zimbabwe the Ministry of Labour appoints Labour Officers who undertakes conciliatory
processes. On the other hand the National Employment Councils for various sectors also have
Designated Agents who takes the roles of conciliators in solving arising disputes within the
companies under their industry.
Normally the graded employees are the ones who have their matters heard at the NECs and
the managerial staff who are charged with the SI 15 of 2006 have their matters heard by
the Ministry of Labour, Labour Officers.
• The process of conciliation involves assisting the parties to clarify their points of disagreement and
attempting to promote a settlement, but the terms of settlement remain the responsibility of the
parties.
• Every dispute (right/interest) must be subjected to conciliation process except where the parties
agree to refer it to voluntary arbitration which is a method that leads to a final award. (Easipark
Harare Vs Mhesa and five other employees: in this matter the arbitrator was to asses whether the
claimants were managerial employees or NEC graded employees. The award was to determine
whether the claimants should benefit from an NEC CBA or should have their own collective
agreement such as other existing managers. The award was in favour of the claimants and the
employer was forced to review their salaries outside of the NEC CBA)

6. Conciliation continued…..
• The conciliation process is given a time span of 30 days from the day that the Labour Officer begins
to attempt to settle the matter as regulated by the Minister of Labour who prescribes ‘the attempt
to settle’ the situations as follows.
i. Any form of communication by the Labour Officer to either party in respect of the dispute
ii. Any form of notification for the parties to attend proceedings
iii. Any hearing the Labour Officer may conduct according.
(from these regulations which ever is the earliest of the three is taken as the point from
which the 30 days are counted.)
• If the dispute is settled by conciliation ,the Labour Officer is required to record the settlement in
writing on a form entitled ‘Certificate of Settlement’ (LR1) and append his or her signature. The
parties must also append their signatures as confirmation to agreement and each should take a
copy of the certificate.
• If the dispute is not resolved within the regulated 30 days period the Labour Officer is obliged to
issue a Certificate of no Settlement on form (LR2) , the concerned officer must sign it. This enables
the disputants to invoke other Labour Dispute resolution mechanisation. Conversely, the disputants
may agree to extend the expiry period of 30 days. The agreement shall be communicated to the
Labour officer who shall not refer the dispute to arbitration but shall continue in his or her attempt
to settle the matter through conciliation.

7. Conciliation continued…..
• Upon disagreement the parties are given the choice between a Compulsory Arbitrator and a Voluntary
Arbitrator
• The Labour Officer compiles the terms of reference from the disputants and put them on a form submitted
to the arbitrator chosen from the list set by the Minister to hear the cases.
• Unlike Arbitration, in Conciliation there can be no imposed solution to a dispute. The dispute can only be
settled by a conciliator (Labour or Designated Agent) if there is consensus, i.e. where the parties jointly
agree on a solution.
• That solution may have been suggested by the conciliator but nevertheless it must be accepted by both
employer and employee concerned otherwise no settlement can be concluded
• This is change from previous practice where a labour relations officer had the right to issue a binding
determination. (Makings,2007: 93)

8. This is a procedure where by a third party which is unbiased(Individual arbitrator,
board of arbitrators or arbitration court) not acting as a court of law is empowered to
take a decision which disposes off the dispute. This involves a contested hearing at
which the parties present evidence and arguments to a third party. The arbitrator then
gives a decision or arbitral award which is usually binding on the parties (Hard facts
based on law)
Types of arbitration methods.
i. Voluntary arbitration: which is not regulated by the Labour act but by the
Arbitration Act Chapter 17:5 which incorporates Model Law (Model Law has a
complete set of rules governing all important aspect of arbitration.) Parties may
agree to forego conciliation and opt for voluntary arbitration.
ii. Compulsory arbitration: this is exclusively concerned with the Labour Act . The
arbitration only arise when there is a dispute of interest in an essential service for
example when employees claim for under payment of wages while the employer
disputes that there was NO underpayment. The arbitrator would look at the
matter with learned expertise of the Act and statutes, also gives quantification
upon any need. e.g refer to ZIMA txt on labour law

9. Difference between voluntary and compulsory arbitration
Compulsory Arbitration
• Is regulated extensively by
the Labour Act, leaving little
room for Arbitration Act.
• An award maybe appealed
against on ‘question of law’
to the Labour Court.
Voluntary Arbitration
• Is regulated by the
Arbitration Act Chapter 17:5
which incorporates the
Model Law.
• An award can not be
appealed against. It can only
be set aside by way of
application to High Court on
the very restricted grounds
in article 34 of the Model
Law.

10. Compulsory arbitration continued………..
• Compulsory arbitration is not an automatic method available whenever conciliation has
failed. It is only available if two parties agree.
• There are two roots to compulsory arbitration:
i. Labour officer secures the agreement of the two parties to refer the matter to
compulsory arbitration under section 93 of the Act.
ii. In the absents of agreement of the parties, the Labour Officer exercises his or her
discretion to refer the dispute to compulsory arbitration under section 93 (5)(c).
 A compulsory arbitrator is chosen from a list of qualified arbitrators prepared by
the Minister of Labour.
• Parties are free to agree on the procedure to be followed, failing which the arbitrator may
conduct the proceedings in such manner as he or she considers appropriate.
• The effect of reference of a dispute to compulsory arbitration is that no collective job action
in respect of the dispute maybe engaged in.
• Once an arbitration award has been made the arbitrator is required to submit sufficient
certified copies to each of the parties. To enforce the award, the party to whom it relates
must submit it for registration by the Magistrate’s court or High court, depending on the
quantum of the award. Once registered it becomes enforceable as a civil judgement of the
registered court. The court may decline the registration where award was fraudulently
obtained.

11. The Labour Court is set for Hearing and Determining applications and appeals in terms of section
89 of the Act.
• Any party of the disputants may appeal to the Labour Court on ‘question of law’ in any
matter finalised at lower levels of the ADR frame work for example after rejection of an
appeal by an NEC Designated agent due to delay (exceeded regulated 7 days) a claimant can
file to be heard at the Labour Court giving a credible explanation for the delay.
• A party to a matter before the Labour Court may appear in person or be represented by a
legal practitioner or an official or employee of a registered trade union or employers
organisation of which the party is a member.
 The representation at this level is restrictive ; a co-worker or member of workers committee
may not without also being an official of a registered trade union represent a part in
proceedings before the Labour Court
• Labour Court is empowered to make any of its decisions retrospective. Labour Court orders
can not be enforced directly as a Labour Court judgement; for purpose of enforcement. An
order or determination of the labour Court must be registered in the Magistrate’s Court or
High Court. Once registered the decision shall have the same effect as a civil judgement of
appropriate court and therefore enforceable as such.
• An appeal to the Labour court have no effect of suspending the determination or decision
appealed against.

12. Labour Court continued…….
Rescission or alteration by Labour Court of its own decision according to section 92c of the Act.
• There are circumstances in which the court may rescind or vary an order or determination it
has made, that is if:
i. The order was made as default judgement; that is in the absence of the party
against whom it is made.
ii. The court is satisfied that the order is void or was obtained by fraud or mistake
common to the parties.
iii. A patent error is being corrected.
In these circumstances three notices must be served to all parties affected by the order or
determination before the court considers whether or not to rescind.
 No rescission is permissible where the order or determination is subject of a pending
review or appeal.

13. The Zimbabwean dispute resolution mechanisation ,in form of ADR is an effective out of court
framework of dealing with matters between employers and their employees. From the
illustrations in this presentation we can conclude that Alternative Dispute Resolution
mechanisation
• is a win-win situation to address disputes, it promotes a 50/50 conflict resolution situation in
which there is no loser. It looks to the future rather than the past.
• Promotes empowerment; solution to a problem can be found which meets the particular
needs of the parties without jeopardising on legal rights . The destiny of the parties rightly lies
in the hands of the parties themselves.
• Confidentiality and privacy is high with ADR it is an entirely private process and so negative
publicity is avoided unlike the courts where all recordings are susceptible to leaking to the
public.
• Conversely ADR in Zimbabwe is too prolonged due to lack of manpower in the Labour system.
The employees suffers most because they would have to wait for months to get an award.
Legal representation by Lawyers delays the process because of their engagements else where
:Some commentators have observed that some lawyers’ approach in conciliation betokens a
mini-court scenario, a flagrant violation of the tenets of conciliation.
• The Madhuku audit (2011) noted that there was no system of allocating cases to conciliators
and arbitrators; and that there were no guidelines for case management. These procedural
bottlenecks need to be removed to hasten the wheels of justice. Martin Luther King Jnr, the
slain American civil rights leader’s statement that the arc of freedom is long but it tends to
justice, need not apply in the case of labour disputes.
Labour disputes can pose very serious problems in an organisation any work place dispute will
result in loss of production, market share, stakeholder confidence and in a worst scenario:
business closure.