DISPUTE RESOLUTION AND IMPARTIALITY

I have seen situations where labour officers or arbitrators have tended to favour one side or the other in a labour dispute. When arbitrators take sides a gross violation of the justice system would have occurred.

In this article, I will delve into the concept of impartial tribunals and a place this concept has in ensuring justice. I will also note with great concern that some tribunals have been found wanting in as far as this concept is concerned.

As a starting point, for any disciplinary hearing to produce a fair outcome it will have to comply with impartiality which is one of the basic rules of natural justice. When a disciplinary committee sits in a hearing the chairman is not supposed to take sides, his or her role is to independently assess the circumstances of the case and give an uncontaminated verdict. It is also important that when one appoints a chairman this be someone who was not involved in the matter before either as an investigator or witness.  In his book, A Practical Guide to Labour Law, Conciliation, Mediation and Arbitration in Zimbabwe, Mucheche CH, points, out on page 28, that the practise of hiring an outsider to chair a disciplinary hearing does not accord with the spirit of promotion of fair labour standards as the hired outsider will always act in a manner to please his or her “master”. Such will, in most cases, compromise impartiality.

In Denford Chipunza Versus National Social Security Authority and the Chairperson, National Social Security Authority (HC 2112/2002) the court noted the following about a hearing:

• The fact that the minutes were clearly doctored, coupled with the fact that there was only one witness was an indication that the Disciplinary Hearing Committee was biased against the employee.
• Secondly it was pointed out that a past relationship with the affected individual particularly where such relationship has been sour must be viewed with suspicion more so if the party to that relationship is the sole witness.
• Thirdly, the court noted that there is universal agreement among jurists of all countries that it is of first importance that judicial tribunals should be honest, impartial, and disinterested.

In Alternative Dispute Resolution (ADR) it is also important that the labour officer or the arbitrator be impartial in the same manner as any hearing official at company level. By interpreting Labour Law and applying it to the facts of each case, labour officers are part of our judiciary system. The Zimbabwean Constitution on section 164 (2) stipulates that;

“The courts are independent and are subject only to this Constitution and the law, which they must apply impartially, expeditiously and without fear, favour or prejudice.”

Our courts have dealt with impartiality that occurs in other Courts. One such case was between Itayi Nkomo and 2 Others Versus T. M. Supermarket (Pvt) Limited (HC 647/13). The background of the matter may not be important. What is important to note is the fact that the judge who had presided over the matter was engaged with TM supermarkets in some commercial activity. There was evidence that he  received  cash  payments for  agricultural  produce  as  way  back  as  16 May 2012 before presiding over the matter in January 2013. Against the background the High Court held that:

“It is as clear as day light that …. had a pecuniary interest in respondent’s affairs. The amounts involved are quite negligible, but, however, it is not a question of the amount but a pecuniary interest which  usher  in  reasonable  apprehension  of  a  real  likelihood  of  bias”.

The judge went on to point out that;

“I detect  a  real  likelihood  of  bias  in  this  matter,  which  conclusion  in  my  opinion  a reasonable man cannot avoid to make. It is for that reason that despite all the technicalities that can be raised by respondent the inescapable and irrestible conclusion is that … should not have presided over this dispute”.

The implications of the matter between Itayi Nkomo and 2 Others Versus T. M. Supermarket (Pvt) Limited can be itemised as follows:

• When one is handling a matter at arbitration level (as an arbitrator) or even at company level (as a hearing official) they need to ensure that they were no previous dealings with the parties in the dispute that may have negative implications on the judgement they will give.
• Human Resources Practitioners and Lawyers need to be on the look for this kind of bias as this may have disastrous consequences in the way matters are handled.

Another kind of bias that is common in ADR is one in which a labour officer or designated agent argues on behalf of the employee or employer. A look at the matter between Trust Corporation Securities (Private) Limited Versus L.M Gabilo and Devorgille Patsanza (HC 4177/07) can help in understanding biases that can happen in this regard.

On the 26^th June 2007, while Mr Biti for, Devorgille Patsanza, was making submissions at the hearing, the Arbitrator (L.M Gabilo) remarked that Devorgille Patsanza had “told him about how she suffered during the years”. The Trust Corporation Securities (Private) Limited’s’ legal counsel asked him to clarify where this conversation took place, but the Arbitrator did not respond to that inquiry. Because of the remarks the impartiality of the arbitrator was doubted. The outcome of the matter is not very important however the lessons that one can, arguably, learn are as follows:

1. Arbitrators should not hear matters from the parties to the dispute in settings outside the hearings.
2. When a party challenges the impartiality of the arbitrator (In cases of desputes of interest), there is need to adhere to Article 13 (1) of the Arbitration Act (Chapter 7:15). Which says that:

“The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.”

• When impartiality is alleged an arbitration, award can be set aside. The correct procedure will, however, need to be followed.

From the foregoing discussion about impartiality, it can be summarised that impartiality is a very important aspect if any hearing is to be considered as fair. The cases reviewed reflects to some extent that one needs to assess their role in a dispute resolution set up and determine if impartiality may be contested in the hearing or at the appeal level. It is also important to point out that when there are real grounds that one can prove against impartiality a matter can be contested on that basis and if a judgment had been issued it will be set aside.

This article was in the Labour Matters Magazine in 2017.