THE NEED TO EXHAUST DOMESTIC REMEDIES PROVIDED IN A CODE

QUERY:

“We dismissed a manager for stealing. Money was sent to his EcoCash number, but he could not produce receipts to acquit him. The manager did not appeal internally against the decision but has approached the Ministry of Labour already. How would I deal with this situation? Can the matter be heard at the ministry before the said Manager exhausts all internal processes?”

RESPONSE:

Introduction

The quickest response to this question is embedded in section 101(5) of the Labour Act (Chapter 28.01) which precludes such a manager from proceeding to refer a matter to a labour officer before appealing internally. This section reads:

“Notwithstanding this Part, but subject to subsection (6), no labour officer shall intervene in any dispute or matter which is or is liable to be the subject of proceedings under an employment code, nor shall he intervene in any such proceedings”.

The section is clear, a labour officer doesn’t have jurisdiction to entertain a dispute that is still under ambit the code of conduct. The manager, in this instance, should appeal internally first and ensure that all channels are exhausted.

Jambwa v GMB

Individuals fall in the trap of prematurely referring disputes that are still within the ambit of domestic remedies. Jambwa v GMB (HC 11113/11) is one case in which an employee decided to appeal to the High Court against a decision of a General Manager for GMB whereas the code of conduct clearly stated that such appeal should be referred to the Labour Court. In its decisive remarks the court had this to say:

“In casu an appeal to the Labour Court from a decision of the General Manager is a domestic remedy available to the applicant. It is able to afford him redress. Therefore, the applicant has not exhausted domestic remedies as he should have proceeded in the Labour Court by way of appeal. The application cannot succeed on that basis.”

Moyo v Gwindingwi N O & Anor

The same problem was also witnessed in Moyo v Gwindingwi N O & Anor HB 168/11 in which the courts also thought:

“In my view, domestic remedies in this particular case are those remedies and the procedure set out in the code of conduct as being available to an aggrieved party to pursue. An appeal to the Labour Court from a decision of the Director of Corporate Services is provided for in the code of conduct. It is a domestic remedy available to the applicant and she has to exhaust it.

These cases clearly point to the need for an aggrieved party to fully comply with the provisions of a code of conduct before embarking on any external interventions. If a wrong forum is approached that forum will have no option than to dismiss such an appeal or application.

As mentioned above, in the present case, the employee should not have approached a Labour Officer under the Ministry of Labour.

Conclusion

It is advisable in this instance for the employer to attend the first conciliation hearing and highlight to the labour officer that he or she lacks jurisdiction as this matter is supposed to go through an internal appeal process before it is referred to him.  In most cases, any reasonable labour officer will not tolerate such a dispute.

945 Views
error: Content is protected !!