Deciding labour matters on technicalities

Published: 17 August 2017
WHILE a lot has been written about problems related to deciding labour matters on technicalities, many workers who go on to lose cases over-rely on technicalities as a basis for appeals.

In one of my recent articles I wrote about the law and deciding matters on technicalities, a thing that left me with many questions from readers thus this article once again looks at deciding labour cases on technicalities.

There are now many cases where courts have rejected legal arguments as a basis for defence.

Among the cases is the matter Proton Bakery Pvt LTD vs Takaendesa SC126/04 where the Judge said, "This Court has in the past emphasised the need to avoid determining matters on the basis of technical irregularities in labour disputes, particularly where such irregularities can be cured by the leading of evidence 2. Evidence in casu could easily have been led on the technicality in question.

This case clearly shows that a disciplinary authority has the power to hear evidence from parties as a means to cure a technicality irregularity.

The problem we have is that disciplinary authorities might not be technical competent to deal with such matters.

In another classic case Chidembo vs Bindura Nickel Corporation LTD SC35/15, it was held that "not every procedural irregularity that may render the proceedings in question a nullity, especially in labour matters.

The other one SC89/94, this case puts a lot of pressure on workers not to spend energy arguing cases on the basis of legal technicalities but focus on merits of the case for the disciplinary authorities unless the procedure is fatally flawed, the committee must allow for hearing of merits of the case and decide accordingly.

A common risk for workers who spend energies arguing cases on points of law or procedural irregularities is that a simple case ends up being very expensive as energies are spent on non-core matters, further where the case is a hopeless one on merits, the worker risks being ordered to pay the employer's costs.

This has left many workers destitute.

Emotionally, many workers have been destroyed after the courts have over-cited the seriousness of points of law and moved to look at the merits of the case where the workers lose with costs.

One such case is the matter Circle Tracking vs Mika Mahachi SC4/07 where the worker went all the way to the Supreme Court on wrong citing of charges and the Supreme Court said, "It appears that in framing the charge against the respondent reference was made initially to Part V2 and thereafter to Part V1. In my view, the respondent knew the particulars of the offence he was facing. The failure to correctly cite the relevant part of the Code applicable was never made an issue. In my view, nothing turns on this.

The case clearly shows that courts frown on having labour matters decided on procedure rather than merits.

There is an exception to this principle as where failure to follow procedure is of a prejudicial nature, the proceedings might be declared a nullity.

However, the worker would have to demonstrate that there was prejudice.

In conclusion, workers and employers should desist from over-relying on procedural issues when dealing with labour matters and focus on merits of the case where an employee will be disciplined because he or she is guilty and not on procedural flaws.

Davies Ndumiso Sibanda can be contacted on: email: Or cell No: 0772 375 235
- chronicle
Tags: Labour,


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