Journal of Human Resources Management and Labor Studies

December 2015, Vol. 3, No. 2, pp. 65-76

ISSN: 2333-6390(Print), 2333-6404(Online)
Copyright © The Author(s). 2015. All Rights Reserved.
Published by American Research Institute for Policy Development
DOI: 10.15640/jhrmls.v3n2a5
URL: http://dx.doi.org/10.15640/jhrmls.v3n2a5

The dark side of arbitration and Conciliation in Zimbabwe

Mildred Mahapa1 & Watadza Christopher2

Abstract

Disputes and conflicts are the most prominent characteristics of human existence
since time immemorial. It is this inevitability of disputes that calls for measures to be
put in place so as to effectively and efficiently resolve them in order to manage the
employment relationship. Arbitration and conciliation are two ways that are most
used in organization to solve these conflicts. Their use has brought both positive
and negative results in different organization. The paper however sought to look at
the challenges of the arbitration and conciliation process from the Zimbabwean
perspective. Different sources were used to present the critical analysis of these
challenges

Keywords: arbitration, conciliation, labour, management and government

1. Introduction

History is sated with records of conflicts at various levels of human relations

whether at inter-personal, inter-group, intra-group and intra-national or international
arenas, conflicts have been found recurring in social relations. It then follows
thatconflict is also an inevitable characteristic and perspective in employment
relations. This is motivated and precipitated by the dichotomy in interests and goals
between parties in an employment relationship, that is, labour and capital. This study
was prompted by the inevitability of these class disputes, which was further polarised
by the advent of Industrialisation, and the need for the state to design dispute
resolution mechanisms in place that are effective and efficient to enable an
environment that breeds productivity and enable business.

1Mildred Mahapa-Lecturer in the Department of Human Resource Management, Midlands State

University P.Bag 9055 Gweru Zimbabwe.
Email: [email protected]/[email protected] :00263779297472
2 Christopher Watadza-HR Officer Zim Alloys Gweru, Zimbabwe. Email: [email protected].

Cell: 00263772 698 036

66 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

2. Background of the study

The Zimbabwean Courts have been characterised by back logs in labour cases
taking more than 5 years to resolve and finalise and a result an alternative to the court
system has been established in order to counter the challenges associated with the
court litigation route. The Zimbabwean legal structure is critical and of paramount
importance as it provides the provisions within which the Conciliation and
Arbitration derives its legal standing.It is of paramount importance to note at this
stage that conciliation and arbitration are employed as alternative dispute resolution
mechanism to the traditionally used cumbersome litigation process. The litigation
process is usually long and cumbersome and the parties have little or no influence to
the process in terms of speed. Muza (2009) highlighted that the undependability of
the courts traceable to numerous shortcoming dogging them is the reason why
arbitration and conciliation should be opted for. Even Mazanhi (2010) substantiated
the above position where he noted that the Zimbabwean labour Court has been
profound of delays in attending to cases due to the long queues of cases waiting to be
heard. It is against this background that arbitration and conciliation has been the most
preferred mechanisms for dispute resolution. However despite it being a preferred
mechanism, there are some challenges enshrined in it. It is against this background
that the writers sought to highlight some of the challenges.

3. Challenges of Arbitration and conciliation

3.1 Costs

In case of a no settlement at conciliation, the Conciliator initiates a certificate

of no settlement and forwards the case for arbitration. If one party chooses a private
Arbitrator, there are costs involved. The costs of arbitration according to the Labour
Act Section 98 (7) are such that the Labour Officer or Designated agent for the
employment council which is registered to represent the enterprise or industry from
which the parties are from, will determine the share of Arbitration costs to be borne
by each party (Gwisai, 2007). The trend is that many parties choose Arbitrators by
Labour Officers withstanding the back log that is building up in this regard.
Mahapa & Christopher 67

Unfortunately, this has created the avenue for employers to plead incapacity
to pay the costs of arbitration and opting arbitration by Labour Officers with the
hidden agenda of subjecting the dispute resolution to delays which are inevitable with
this route (Duve, 2011).

The government have through the Arbitration Act (Chapter 7:15), gazetted
Arbitral fees with US$300 as a minimum which normally involves one person against
the company. As alluded above the Conciliator will determine the share of arbitral
costs. However Mariwo (2008) observed that in cases which involves ‘unfair
dismissal’, the arbitral costs are usually excessive to the appellant who is actually out
of employment and seeking reinstatement through this mechanism. He added that the
majority end up giving up on the process or opting for the Government Arbitrator
where cases takes more than 36 months to be settled. Maitireyi and Dube (2013)
noted that the pricing of arbitral costs unfairly favors employers who have a better
financial footing than employees. This may create an unenviable situation where
unscrupulous employers abuse their financial advantage by frequently and deliberately
declaring disputes in order to squeeze employees financially.

It is important to highlight that there has been a practice nowadays in

Zimbabwe which has been designed in order to reduce arbitral costs and enhance
accessibility and consequently effectiveness of the alternate dispute resolution
mechanism. The practice according to Madhuku (2010) has developed in Harare as
part of what is described as ‘social responsibility’. As part of social responsibility, an
independent arbitrator is asked to do at least two cases for free, without charging the
parties any fees. This has been designed in response to the increasing number of
parties who plead incapacity to meet the costs and thereby resulting in backlog of
cases awaiting arbitration by government Labour Officers. However in the absence of
a legal basis to push and sustain such a position or gesture, some Arbitrators refuse to
take ‘social responsibility’ cases.

This explains why the issue of social responsibility cases has been peculiar to
the CapitalCity alone because there is no legal structure to push it to other regions of
the country. However if entrenched in Labour Legislative structures, this will go a
long way in enhancing the effectiveness of the dispute resolution mechanism.
Lawyers, as an example, are required to do legal aid work as part of their pay back to
society.
68 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

The pro deo (for God) and in forma pauperis (for the poor) services are well
known in the legal profession across the world (Gwisai, 2007). It has to be one
condition of appointment of an arbitrator that he/she will be required to accept
reasonable ‘social responsibility’ work.

3.2 Speed/Time Limits

Despite the fact that compared to the court litigation system, conciliation and
arbitration as a mechanism for dispute resolution is relatively faster, it should however
be noted that the major drawback of our Labour Act (Chapter 28:01) is that it is silent
interms of time lines within which the process of conciliation and arbitration could be
concluded. The Zimbabwean Law does not impose a maximum time limit for a
Conciliator or Arbitrator to make an award. This gap in law accounts for some of the
delays in resolving labour disputes (Gwisai, 2008). Although the process of
conciliation usually is completed in one sitting and resolution or recommendations are
passed, the arbitration process usually takes time to settle the disputes. This could be
attributed to the absence of set time lines in our legal framework in order to force
arbitrators to resolve disputes with speed. In other countries, like South Africa, their
legal structure provides that the award should be awarded within 21-30 days from the
day of the hearing (South African Labour Relation Act of 1995).

In Lesotho, an Arbitrator is required to issue an award with brief reasons,

within 30 days of the conclusion of the arbitration proceedings and that period can
only be extended by the Director of the Directorate on good cause shown (Lesotho
Labour Relations Act of 1990). In Botswana, Section 9 (9) of the Trades Disputes Act
of 2003 provides that upon conclusion of an arbitration hearing, the arbitrator shall
make an award and shall, within 30 days of the hearing, give reasons for the award.
Gwisai (2008) noted that cases can take more than 12 months before an Arbitrator
can give an award thereby delaying justice. Mariwo (2008) bemoaned the delays
encountered in resolving disputes through arbitration in the private security sector.
This is one example of several cases pending before the Labour Arbitrators.
Government Arbitrators usually takes longer than Independent Arbitrators because of
the volume of cases coming against the number of Government Labour Officers. As
commonly said, the quote ‘justice delayed is justice denied’ is all but the earnest truth
and in the Zimbabwean case.
Mahapa & Christopher 69

The much desired efficiency and expeditious resolution of disputes is

rendered void, unrealistic and unachievable through this administrative malaise
(Matsikidze, 2013).

The new Labour Amendment No 5 of 2015 did not address the issue of time
limits despite the push mainly from the Labour Representative bodies to incorporate
the issue of time limits in order to enhance the effectiveness of the dispute resolution
mechanism.
One of probable reasons why the Legislative arm of the State ignored such
proposal could be attributed to the nature of Conciliation and Arbitration as dispute
resolution mechanism. Conciliation and Arbitration, unlike the court litigation system
is an interactive, negotiation and non adversarial process where disputants, with the
help of a Principal Officers, are expected to craft and construct a mutually beneficial
solution to their dispute. This is evidenced by the increase in 'advisory' awards being
handed down by Arbitrators. The handing out of advisory awards has been
precipitated by the realisation that only the parties to the dispute understands better
the nature and source of their dispute, hence an advisory award gives them another
chance to find an internally crafted solution first before turning to the arbitrator for
an award which may have far reaching consequences to company survival and
protection of jobs in the long run. Many companies have closed or applied for
liquidation after Arbitral or Court rulings emanating from a labour dispute.

3.3 Expertise/Competency of Conciliators and Arbitrators.

Expertise and competencies of those who preside over the process of

conciliation and arbitration has been placed under serious scrutiny. Literature and
research has uncovered that there exist a gap interms of the expertise and
competencies thereby impacting negatively on the service delivery (Trudeau, 2002).
The principal actors presiding over the process should be unquestionably competent,
experienced, disinterested and neutral parties (Bishop and Reed, 1998). Decision of
Arbitrators should not end at being merely reasonable; they should satisfy the
requirement of fairness. It should be highlighted that again the Zimbabwean
legislative structure pre -2012 did not set minimum qualification and experience for
one to be able to sit as a Conciliator and Arbitrator.
70 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

Madhuku (2010) conducted a study on behalf of the International Labour

Organisation where he highlighted that Labour legislation, regulating conciliation and
arbitration in Zimbabwe prescribed no minimum qualifications for principal actors.
Some Scholars have attributed the failure of the dispute resolution mechanism to the
incompetence of those who preside over the cases. Mazanhi (2010) even noted that
some designated agents drawn from some employment councils do not have proper
qualifications and expertise to effectively and efficiently resolve cases brought before
them. Statutory Instrument (SI) 173 of 2012 was promulgated in order to address this
anomaly.
It stipulated that an Arbitrator or a Designated Agent should have a minimum
of a University Degree with at least 2 years experience in Human Resources or
Industrial Relations field, a diploma in People Management. This provision was
welcomed by all stakeholders as they saw that it would go a long way in enhancing the
effectiveness of Conciliation and Arbitration as dispute resolution mechanism.

Trudeau (2002) highlighted that competency of those who preside over cases
also gives confidence in disputants and may also speedy up the time within which the
resolution to the dispute can be made. The perception of the parties has a bearing on
whether they would accept the arbitral award or not. A decision which is perceived to
be unjust and unfair is likely to be appealed against, thereby prolonging the dispute.
Madhuku (2010) highlighted that if there is one area of agreement among all social
partners in Zimbabwe is the competency level for most Conciliators and Arbitrators is
very low because there is no specific training offered to them before they begin their
duties. The Independent Arbitrators tend to give outrageous and populists awards. A
survey done by Muchadeyi (2013) revealed that some awards given are outrageous in
their insensitivity to the informality and social justice or equity implication of
conciliation and arbitration as dispute resolution mechanisms. He added that
according to SI 217 of 2013 frame L.R 7 requires the arbitrator to retain a copy of the
award while the other copies are served on the parties. There is no record that is being
sent to the Ministry of Labour to enable the Ministry as the regulator to review and
scrutinize the quality of awards being handed out. It is only at the Labour Court
where the Ministry will get some scope as to the nature of awards given. However in
South Africa, it is a statutory provision that every arbitration award be filed with the
Registrar of the Courts (Madhuku, 2010).
Mahapa & Christopher 71

Some Arbitrators have been criticized for awarding unrealistic rulings

especially on the issue of remuneration. The Employer representative body EMCOZ
has on numerous occasions castigated Arbitrators who come up with populists awards
which go against business. Arbitrators have been criticized for being bookish and
failing to take into cognisance the current environment within which business is
operating in. EMCOZ is advocating for a mutually negotiated dispute settlement
between the parties without the involvement of arbitrators. However the Workers’
through their representative body, Zimbabwe Congress of Trade Union (ZCTU),
argued that the Employers’ position is influenced by their ignorance of the legal
framework which governs employee relations (The Worker, August 2014).

It should be highlighted that minimum academic qualification were drawn as

prerequisite in order to ensure correct interpretation of legal statutes (Madhuku,
2012). However there are other soft skills which are beyond academic papers which
enables one to be a conciliator or an arbitrator. These sought of skills are lacking in
the Labour Officers of today. Lack of faith and confidence with the competency and
integrity levels of conciliators will negatively impact on the effectiveness of the
alternate dispute resolution mechanism. This explains why employers appeal or
contest most arbitral awards to the next level, which is the Labour Court because they
have a negative perception and believe that the conciliation and arbitration system was
not a conclusive process of dispute resolution. Gwisai (2007) pointed out that parties
have successfully challenged arbitral awards in a higher court and exposing the
weakness and shortcomings of arbitrators. This fact on its own is a serious indictment
against the quality and credibility of arbitration rulings.

3.4 Finality of awards

A critical area one needs to consider when assessing the challenges of

conciliation and arbitration as dispute resolution mechanisms is the issue surrounding
the finality of awards handed out to settle the dispute. Unlike voluntary Arbitration
which prescribes final awards which are impossible to set aside, Compulsory
Arbitration awards are susceptible to appeals (Madhuku, 2010). The Law provides an
appeal on the question of law. It has been observed that they are more appeals
emanating from compulsory arbitral awards than warranted. As a result, many
disputes are taking too long to resolve because the provision for an appeal to the
Labour Court.
72 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

The conciliation and arbitration needs to develop jurisprudence similar to that

of ordinary courts with the view to ensuring more finality of arbitral awards in
compulsory arbitration (Matsikidze, 2013). Until and unless the arbitration stage is
provided a legal standing to offer final awards, the alternative dispute resolution
mechanisms will remain a utopia. The option of appeal defeats the very purpose why
the conciliation and arbitration were adopted for. They were adopted in order to
counter the court litigation system and enhance effectiveness in terms of speed and
accessibility of dispute resolution mechanism. As a consequence, the absence of that
legal standing to give final awards removes the efficiency which the mechanism was
designed to create.

A High Court ruling is not final since either part can contest to the Supreme
Court whose decision or ruling will be final. It is against this back drop that Labour is
pushing for the finality of arbitral awards to avoid the complexities of the court
system which usually take ages to settle.

3.5 Enforcement of awards

Closely related to the issue of finality of arbitral awards is the issue of

enforcement of arbitral awards. In order to enhance counter the current challenges of
arbitration as a dispute resolution mechanism, the awards should not only be final, but
they should also be enforceable. For the Labour Court, Section 92 B of the Labour
Act Chapter 28:01 is explicit in terms of its enforceability. However regarding
arbitration awards, the position is governed by Section 98 (14) which says that “any
party to whom an arbitral award related may submit for registration the copy of it
furnished to him in terms of Sub section (13) to the court of any magistrate which
would have jurisdiction to make an order corresponding to the award had the matter
been determined by it, or, if the arbitral award exceeds the jurisdiction of any
magistrates court, the high court” (Labour Act Chapter 28:01). In practice the
registration process is laborious and confusing. It is also important to note that many
workers are not even aware of this requirement and the time lapse between obtaining
an award and seeking registration for enforcement may make it impracticable to get
an effective remedy (Gwisai, 2007).
Mahapa & Christopher 73

One can also argue that the further requirement of registration also
undermines the alternate dispute resolution mechanism in diverting the dispute to
ordinary courts as the registering court also reserves the right to question the validity
of the order and as a result open the issues again. Madhuku (2010) observed that
some of the courts refuse to register awards not ‘sounding in money’, such as an order
of reinstatement only. A closer look at the South African law, one can deduce that it
provides and make Arbitral judgments executed in the same way as orders of the high
court (South African Labour Relation Act of 1995 Section 163). The same applies to
Malawi Labour Relations Act of 1996 says “Any decision or order of Industrial
Relations Court shall have the same force and effect as any other decision or order of
a competent court shall be enforceable accordingly.

In continuation of the above (Matsikidze, 2013) carried out the audit and
discovered that breaching of conciliation agreements was a common affair. He added
that there is no provision stipulating the effect of the conciliation agreement should
one of the parties breaches it. As a result the other part is left with an award which
cannot be converted into an arbitration award. Conciliation as a mechanism for
dispute resolution has been critisised on its dependency on goodwill and utmost good
faith and that there conciliator cannot give a binding decision (Matsikidze, 2013). The
longer the case takes before finality impact negatively on how the aggrieved party has
on the process as a whole thereby affecting the effectiveness of the dispute resolution
in place. The fact that Conciliation is not enforceable in the Zimbabwean context
places the mechanism at a disadvantage (Matsikidze, 2013). To borrow from the
South African set up, there is need to set up an independent system to govern
conciliation and arbitration in Zimbabwe. Madhuku (2010) noted that there should be
an independent panel of Conciliators and they should not be restricted to Labour
Officers who are Ministry Appointees.

It should be highlighted that under statutory instrument 15 of 2006, section 8

(7) Principal Officers at Conciliation had no legal standing to prescribe a binding
resolution to a dispute. Their main role was limited to facilitating dialogue between
disputants and give recommendations. The National Employment Code of Conduct
Regulations, 2005, gazetted on 27 January 2006 confirmed the position that Labour
Officers at Conciliation stage could only attempt to conciliate - and failing that, refers
matters to arbitration. However the amended No 5 of 2015 repealed the above
position.
74 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

New subsection (5), (5a) and (5b) of section 93 of the Labour Act changed the
process of Conciliation stipulating different approaches to conciliating disputes of
interest and disputes of right. These amendments allow the Conciliator to give a
legally binding 'draft' award. The draft award is then sent to the Labour Court for
confirmation and if thoughtappropriate by the Labour Court, the court order will be
given to enforce the award made by the conciliator. This amendment is two-faced in
terms of its contribution to the effectiveness of conciliation and arbitration. This will
plug the loophole which has been used by employers in contesting or appealing
disputes of rights despite glaring proof that they was a breach of contract or right.On
the dark side, in its current form this amendment will likely clog the dispute resolution
mechanism in the sense that all disputes of rights are going to be dealt with by Labour
Officers at conciliation level.

3.6 The involvement of legal practitioners

The presence of lawyers in our dispute resolution mechanism can negatively

impact on the process. The law and practice in Zimbabwe is that the disputants may
choose to be represented by their legal practitioners from Conciliation itself. Section 4
of the labour regulations states that “a party to a matter before a labour officer may be
presented by a fellow employee, an official of a registered trade union, employers’
organization or a legal practitioner.” (Labour Act Chapter 28:01) Sometimes
employers never bother to attend in person and send their lawyers instead. In most
cases Conciliators do not insist on the presence of the party in person, and as a result
either party can choose not to attend in person.

Madhuku (2010) noted that this has impacted on the effectiveness of the
dispute resolution mechanism. He recommended that our legislative structure should
get insights from the practice in other Southern African countries. The common
position is to distinguish between Conciliation and Arbitration. In South Africa and
Botswana for an example, representation by legal practitioners is not permitted in
conciliation proceedings but may be allowed in arbitration. The prohibition of legal
practitioners at preliminary stages like Conciliation is done in order to give the
disputants a chance to dialogue and find a mutually agreeable settlement before
bringing in legal practitioners. According to the University of Botswana Law Journal
(2012), Section 10 of Trades Disputes Act in Botswana also mirrors the South African
legal framework.
Mahapa & Christopher 75

It is well established that legal practitioners may be dilatory and many have a
penchant for diverting attention from real issues (Duve, 2010). This as a result, impact
negatively on the effectiveness of the system as a dispute resolution mechanism.

3.7 Lack of transparency

The fact that arbitration hearings are generally held in private rather than in an
open courtroom, and decisions are usually not publicly accessible, is considered a
benefit by some people in some situations. The absence of guidelines in our legal
framework on conciliation has also impacted negatively on transparency of the
system. Transparency is a critical element in shaping perception and confidence of
disputants. Perception is also critical in ensuring that those who approach the system
will accept a resolution or award which comes out of the system.

To this end a certain degree of transparency is needed in order to shape

perception and even attitude of those who seek recourse. Awards should also be
prone to evaluations and scrutiny by an established independent labour board as is the
case in Malawi and Lesotho.

4. Conclusion

It can be concluded that all is not rosy in the process of arbitration and
conciliation. There are challenges that are enshrined in the process that can hinder the
effectiveness of the two methods in Zimbabwe. Organisations and employees
therefore should understand these challenges before they venture in the process.
76 Journal of Human Resources Management and Labor Studies, Vol. 3(2), December 2015

5. References

Duve R (2011) Labour Arbitration effectiveness in Zimbabwe: Fact of Fiction ?.

Labour article pp 135-15
Gwisai. M. (2007),Labour and Employment law in Zimbabwe: Relations of work
under neo-colonial capitalism. Zimbabwe Labour Centre and Institute of
Commercial Law, University of Zimbabwe,Harare,Zimbabwe.
Madhuku L (2010) Audit of the Alternative Labour Dispute Resolution System in
Zimbabwe, ILO, Harare
Mariwo, T (2008) Working conditions and labour relations in the private security
industry in Zimbabwe No 27, Harare, ILO Publications.
Matsikidze. R. (2013),Alternative Dispute Resolution in Zimbabwe: A Practical
Approach to Arbitration, Mediation and Negotiation, Ist Edition, Zambezia,
Harare, Zimbabwe
Mazanhi.I (2010).Arbitration as a means of resolving labour disputes: A review of the
current state of Arbitration cases and its impact on the economy. Paper
presented at the IPC Workers’ Committee and Works Council Members
Conference
Statutory Instrument 173 of 2012/ Labour (Arbitrators) Regulations 2012