DISPUTES are inevitable in any relationship; and the employment relationship is no exception. It is therefore very important to know the appropriate forum to which one may send a dispute that may arise in the workplace. This not only saves time and money but also saves one from the inconvenience of moving from one forum to the other.
The basic legislative framework that delineates which particular disputes is resolved by which forum is the Labour Code Order, 1992, having been amended over the years. Both the Labour Court and the Directorate of Disputes Prevention and Resolution (DDPR) are mechanisms created for resolving labour disputes through third party intervention. The Labour Court is an adjudication forum whilst the DDPR exercises mediation and arbitration (Alternative Dispute Resolution – ADR) powers.
It is of primary importance to highlight that Courts of law exist to resolve rights disputes, that is, those that impinge on infringement of rights. The Labour Court has therefore been established as a specialised Court to exclusively resolve employment related disputes. These include:
- Unfair dismissals – (Section 226 (1) (c ) of the Labour Code (Amendment) Act, 2000 talks to jurisdiction over unfair dismissal claims which has been split between the Labour Court and the DDPR, depending on the nature of the claim. The Labour Court has jurisdiction over the following unfair dismissal claims:-
- Unfair Dismissals Based on Operational Reasons – these are disputes that emanate from retrenchments and employers’ restructuring or reorganization processes.
- Unfair dismissal claims based on participation in a strike or as a consequence of a lockout – the Court also has powers to determine unfair dismissals that arise from employees’ participation in a strike or resulting from a lockout.
- ii) Unfair labour practices Claims – (Section 226 (1) (b) of the Labour Code (Amendment Act, 2000) states that the following constitute unfair labour practices under the Code. They are:
Sexual harassment cases;
Claims over bad faith bargaining;
Interference by the employer in trade union affairs;
Discrimination against union members and officials;
Disputes over organisational rights such as access to a workplace by trade union officials.
iii) Workmen’s compensation claims – the Labour Court deals with workmen’s compensation claims on the basis of its mandate to resolve all labour disputes, despite a provision in the Workmen’s Compensation Act, 1977 vesting such powers on the Magistrate Court. Arguably, the Workmen’s Compensation Act is outdated, hence the Ministry of Labour and Employment’s efforts to review all legislation under its auspices, with a view to among others, harmonising such older pieces of legislation with other laws and prevailing practices.
- iv) Disputes concerning the interpretation and/ or application of the Labour Code and other labour laws (Section 226 (1) (a) of the Labour Code (Amendment) Act, 2000). Thus, any dispute over the interpretation or application of any provisions of the Labour Code or any other labour law is placed under the exclusive jurisdiction of the Labour Court.
- v) Urgent matters/Interlocutory reliefs/Interdicts (Section 228 (1) of the Labour Code (Amendment) Act, 2000, Rule 22 & 23 of the Labour Court Rules, 1994, respectively) – The Labour Court may hear matters that are brought before it on an urgent basis and grant interim or interlocutory reliefs pending finalisation of substantive claims.
- vi) Reviews (Section 226 (2) (c) as amended by the Labour Code (Amendment) Act, 2006) – This Section stipulates that a party may approach the Labour Court for the review of an award of the DDPR. It must be emphasised that only reviews and not appeals may be entertained by the Labour Court. The basic distinction, simply put, being that a reviewing Court is concerned not with the decision but with the decision – making process or the manner in which a case was conducted. This could cover issues such as irrationality, illegality or procedural impropriety. An appeal forum, on the other hand, may reconsider the evidence led and arrived at its own conclusion. Judgments of the Labour Court are subject to appeal and review by the Labour Appeal Court.
vii) Enforcement of Labour Court judgments and DDPR awards (Section 228 E (5) of the Labour Code (Amendment) Act, 2000) – This Section indicates that for execution of Labour Court judgments and awards of the DDPR, the appropriate forum is the Labour Court.
viii) Appeals from the Public Service Tribunal (Public Service Amendment Act, 2007) – In terms of an amendment to the Public Service Act, 2005 in 2007, the Labour Court may hear appeals from the decisions of the Public Service Tribunal.
On the contrary, the DDPR has power to resolve both rights and interest disputes. Disputes of interest could be over wages. The jurisdiction of the DDPR is set out in Section 226 (2) of the Labour Code (Amendment Act, 2000). These include unfair dismissals that do not fall under the exclusive jurisdiction of the Labour Court. Other disputes that may be resolved by the DDPR are Disputes concerning the underpayment or non – payment of monies due under the Labour Code. This means if a dispute involves the underpayment or non – payment of any monies due under the Labour Code, an aggrieved party may approach the DDPR for relief. Examples of such disputes include claims over payment of severance pay, unpaid wages or any benefit that may accrue from the employment contract. Furthermore, the DDPR may also resolve any dispute that may be referred by agreement between the parties; Disputes concerning the application or interpretation of a collective bargaining agreement; Breach of a contract of employment and Disputes concerning Wages Order contemplated under Section 51 of the Labour Code.
It should be noted that the DDPR not only resolves disputes but has a mandate to prevent disputes. In achieving this mandate, it holds sensitisation workshops and training sessions through its Industrial Advisory and Promotion Unit (IPAPU).
In conclusion, It is therefore the intention of the government to strengthen these institutions to provide speedy resolutions and adjudication of trade dispute by ensuring that dispute resolution mechanism system is independent of the Government, Political Parties, Employers Organisations and Trade Unions and provide fair, effective, less formal, affordable and speedy dispute prevention and resolution.
This article has been written by the Ministry of Labour and Employment. For more information, do not hesitate to contact us here: Tel: 22322565/22316255 Cell: 57905626
You can also find us on our Ministry’s website: www.labour.gov.ls OR on our Facebook page (Ministry of Labour and Employment Lesotho)