Employment 2022 Comparisons

There have been no major enactments or court decisions that have resulted in changes in employment law in the past 12 months.

However, there have been some legislative enactments that have been gazetted in order to address the COVID-19 crisis from an employment perspective. These are mostly aimed at securing the protection of employees’ health and safety while they are in the workplace. This has been achieved by setting minimum standards that should be implemented by employers, such as:

• testing for COVID-19;
• compulsory hand sanitisation; and
• temperature checks. 

The relevant legislation is the Public Health (COVID-19 Prevention, Containment and Treatment) (NATIONAL LOCKDOWN) (No 2) Order, 2020 Statutory Instrument 200 of 2020. The legislation is of temporary application and subject to regular review and amendment.

Some of the most significant amendments to this legislation were effected through the Public Health (COVID-19 Prevention, Containment and Treatment) (NATIONAL LOCKDOWN) (No 2) (Amendment) Order (No 34), Statutory Instrument 228B of 2021 ("SI 228B of 2021"), and the Public Health (COVID-19 Prevention, Containment and Treatment) (NATIONAL LOCKDOWN) (No 2) (Amendment) Order (No 35), Statutory Instrument 234 of 2021 ("SI 234 of 2021").

These two statutory instruments are significant in that they introduced compulsory vaccination for certain classes of employee.

• SI 228B of 2021, which was gazetted on 10 September 2021, introduced the requirement that all employees of gymnastic clubs, health spas, fitness centres, theatres and cinemas be fully vaccinated.
• SI 234 of 2021, which was gazetted on the 17 September 2021, required that all members of the public service not fully vaccinated by 15 October 2021 are:
1. to be barred from the workplace; and
2. not entitled to receive a salary while so barred.

In addition, any member of the public service who refuses to be vaccinated without reasonable excuse shall be subject to disciplinary proceedings for refusing to obey a lawful instruction. Such reasonable excuse shall be communicated promptly in writing to the head of the Ministry or department in which the individual concerned is employed, in which case the head of the Ministry or department may extend the vaccine mandate to a date no later than 31 December 2021. The term “reasonable excuse” is not defined in the statutory instrument.

Our law does not utilise the terms “blue-collar” and “white-collar” when classifying workers. There is a distinction between managerial and non-managerial employees, however, which is recognised by statute. Non-managerial employees are generally subject to industry-level collective bargaining agreements (CBAs), whereas managerial employees are rarely subject to CBAs.

CBAs regulate the terms and conditions of employment, such as grading, wages, benefits and working hours. They also prescribe the minimum wage that is applicable to each grade.

The term “non-managerial employee” can apply to both blue-collar and white-collar employees ‒ for instance, the non-managerial employees in an agricultural enterprise may comprise general labourers (blue-collar workers) and clerical staff (white-collar workers).

Although the distinction is not explicitly recognised at law, the grading system is implicitly cognisant of the distinction, as unskilled labour is generally placed in the lowest grades with the least pay.

In addition to the distinction between managerial and non-managerial employees, employment contracts are categorised along the lines of:

• whether the contract is for an indefinite period, or for a fixed term; or
• whether it is seasonal or casual.

These different types of contracts are discussed in greater detail in 2.2 Contractual Relationship.

The following are the main types of employment contracts.

• Contracts without limit of time – these are employment contracts that are open-ended and do not have a termination date. They are otherwise referred to as "permanent" contracts.
• Fixed-term contracts – these are employment contracts for a fixed duration. They have a fixed start and end date.
• Casual work contracts – these refer to contracts for work for which an employee is engaged for not more than a total of six weeks in any four consecutive months. An example of a casual contract is a contract for off-loading delivery trucks as and when the work is available.
• Seasonal work contracts – these are contracts relating to work that is, owing to the nature of the industry, performed only at certain times of the year. An example of seasonal labour is planting or harvesting crops.
• Apprenticeship contracts – these provide on-the-job training and have a stipulated start and end date. 

A contract of employment does not have to be in writing. In terms of Zimbabwean law, oral contracts are valid and enforceable. However, Section 12(2) of the Labour Act [Chapter 28.01] obliges the employer to inform an employee in writing of the following particulars upon engagement:

• the name and address of the employer;
• the period, if limited, for which the employee is engaged;
• the terms of probation, if any;
• the terms of any employment code;
• the employee’s remuneration, its manner of calculation and the intervals at which it will be paid;
• hours of work;
• any bonus or incentive production scheme;
• vacation leave and vacation pay; and
• any other benefits provided under the contract of employment.

Hours of Work

Maximum working hours are generally regulated under the relevant CBA. In the absence of an applicable CBA, the employee should be informed of the ordinary hours of work within the context of Section 12(2)(g) of the Labour Act, which is referred to in 2.2 Contractual Relationship.

Generally, employees work an eight- or nine-hour day, with shift workers in some industries working up to 12 hours per day. In terms of Section 14C of the Labour Act, an employee shall have at least 24 hours of continuous rest per week.

Employers may permit their employees to work on a flexitime basis. This is, however, not regulated.

Contracts of employment for part-time workers must stipulate the hours that they are required to work per day, week or month, as well as the applicable remuneration.

Overtime

Overtime for employees who are subject to a CBA is regulated in terms thereof. In some industries, the employer may compel its employees to work overtime, whereas in others the employer may only request its employees to do so. Managerial employees are generally not entitled to overtime pay unless the employment contract provides for it.

Overtime pay is usually calculated at a rate that is higher than the ordinary hourly wage ‒ in some cases, it is up to double the regular hourly wage. Employees may also be compensated for overtime by way of time off corresponding to the overtime worked, calculated at a rate that is generally higher than the actual overtime worked.

Section 20 of the Labour Act empowers the government minister responsible for the administration of the Labour Act to promulgate a statutory instrument specifying minimum wages and benefits for any class of employees in any undertaking or industry.

The Labour (Specification of Minimum Wages) Notice, Statutory Instrument 70 of 1996 was gazetted in terms of and to give effect to Section 20 of the Labour Act. In terms thereof, the minister specifies the minimum wage that should be paid to certain groups of employees, with the exception of:

• employees who are subject to a National Employment Council agreement;
• employees in the agricultural sector; and
• domestic workers.

The minimum wage was last reviewed by Statutory Instrument 101 of 2022, which came into effect on 20 May 2022.

In addition to Section 20 of the Labour Act, Section 74(2) of the same act allows registered trade unions and registered employer organisations or federations thereof to negotiate and agree on rates of remuneration and minimum wages for different grades and types of occupations. The resultant agreed wages are recorded in industry- or sector-specific CBAs. Those CBAs made under Section 74 of the Labour Act are binding on all employers and employees in the sector or industry to which the agreements relate.

Neither the Labour Act nor the Minimum Wage Regulations make it compulsory for employers to pay a bonus or 13th-month salary. However, some CBAs, such as the CBA for the Banking Undertaking (SI 273/00), make it compulsory for employers to pay a 13th-month bonus. In all other cases, the entitlement to a bonus is a discretionary matter that is regulated by the terms of the contract between the parties.

Vacation Leave

Under the terms of Section 14A of the Labour Act, an employee who would have completed their first year of service with an employer is entitled to fully paid vacation leave at the rate of one calendar month per year or two-and-a-half days per month. An employee who has no accrued vacation leave may take unpaid vacation leave.

Special Leave

An employee is entitled to paid special leave not exceeding 12 days in a calendar year under the terms of Section 14B of the Labour Act. An employee may be allowed to take special leave for the following reasons:

• certified contact with an infectious disease;
• a subpoena to attend any court in Zimbabwe as a witness;

• attending as a delegate and officer-bearer at any meeting of a registered trade union that represents employees within the undertaking or industry in which the employee is employed;

• when detained for questioning by the police;
• on the death of a spouse, parent, child or legal dependant; or
• on any justifiable compassionate ground.

Weekly and Public Holiday Rest

Under Section 14C of the Labour Act an employee is entitled to not less than 24 hours of continuous rest per week. An employee is also entitled to a leave of absence on public holidays. If they consent to work on public holidays, they will be entitled to at least double their ordinary daily remuneration rate.

Maternity Leave

A female employee who would have served for at least a year is entitled to a maximum of three fully paid periods of maternity leave under the terms of Section 18 of the Labour Act. Each period of maternity leave must be at least 98 days, and shall be separated from the next period of maternity leave by not less than 24 months. An employee who fails to meet the stipulated requirements will be granted unpaid maternity leave. Zimbabwean law does not provide for paternity leave.

Under the terms of Section 65(7) of the Constitution of Zimbabwe Amendment (No 20) Act 2013, women employees have the right to fully paid maternity leave for at least three months. The Constitution does not place any limitations on the number of fully paid maternity leave periods that an employee is entitled to, nor does it require an employee to have served for at least a year before qualifying for maternity leave. It also does not require that the periods of maternity leave be separated by at least 24 months. 

The Labour Act is yet to be amended in order to align its maternity leave provisions with the Constitution.

Sick Leave

A sick employee is defined as a person who is prevented from attending duties because of illness or injury, or who is undergoing medical treatment. The illness should be certified by a registered medical practitioner.

Under the terms of Section 14 of the Labour Act, a sick employee is entitled to 90 days of fully paid sick leave per year, as well as a further 90 days of sick leave on half pay. If the medical condition persists thereafter, the employer is entitled to terminate the employment contract by reason of the employee’s incapacity.

Confidential Information

There is nothing in the Labour Act that regulates the disclosure of confidential information. This is regulated by the common law, which generally prohibits an employee from disclosing confidential information without authority from the employer. Employers are also at liberty to include a confidentiality clause in their employment contracts.

Non-disparagement

The Labour Act does not prohibit employees from speaking negatively about the employer, its products or its services. The employee’s duties at common law, however, imply a duty to further the employer’s best interests and avoid bringing the employer into disrepute. The contract of employment may also contain a non-disparagement clause. In addition, some codes of conduct make it an offence to say or do anything that brings the employer into disrepute.

An employee who speaks negatively about the employer, its products or its services may – in addition to facing disciplinary action ‒ face a claim for damages. Such a claim would not be subject to any limitation of liability, unless the contract of employment provides otherwise.

A non-compete clause is generally enforceable if it is reasonable and not contrary to public policy. A non-compete or restraint of trade clause will usually affirm that the employee accepts that the restraint is reasonable, both in scope and duration.

It is not a legal requirement that restrictive covenants be accompanied by independent consideration for the same. Resultantly, employees do not generally receive compensation in return for entering into non-compete agreements with their employers.

An employee who breaches a non-compete clause may be subject to a claim for damages by the employer. The onus of proving the quantum of such damages lies with the employer, unless the quantum of the same is specified in the non-compete clause.

Clauses that prohibit an employee from contacting the employer’s customers following the termination of the contract are a common feature of employment contracts. Non-solicitation clauses in relation to fellow employees are less common.

Non-solicitation clauses are generally enforceable, and ‒ in the event of breach – the employer may make a claim for damages. Such damages may be quantified with reference to the business lost as a result of the breach. The damages may also be liquidated ‒ that is, a certain sum may be stipulated in the contract as comprising the damages due in the event of breach by the employee. In addition to making a claim for damages, the employer may also seek an order prohibiting the former employee from soliciting its customers or employees.

The general position is that employee data collected by the employer should be treated as confidential and only used for the purposes for which it was collected. Employee data should be collected with the employee’s consent.

Employees have the right to privacy, which is enshrined in Section 57 of the Constitution of Zimbabwe. Section 57 operates to prohibit an employer from breaching an employee’s right to the privacy of their communications and their right not to have their health condition disclosed. 

The Zimbabwe Investment and Development Agency Act [Chapter 14.38] permits foreign investors to employ senior expatriate staff in the capacity of a senior manager, technical and operational expert or adviser.

There is no prohibition against employing foreigners under any other law, subject to the requirement that such foreign employees should be lawfully resident in Zimbabwe and in possession of an employment permit as required by the Immigration Act [Chapter 4.02] (as read with the Immigration Regulations, Statutory Instrument 195 of 1998).

An employer who wishes to employ a foreign national is required to apply for the issuance of a temporary employment permit to the foreign national under Section 22 of the Immigration Regulations, Statutory Instrument 195 of 1998. The application for the employment permit should be accompanied by:

• a job offer from the employer
• the prospective employee’s educational and professional qualifications; and
• proof of the prospective employee's work experience.

The temporary employment permit will be issued for a period not exceeding five years.

Under Section 27 of the Labour Act, any group of employees may form a trade union, which shall become a body corporate capable of suing and being sued in its own name upon its registration.

The role of trade unions is generally to represent the interests of its members in matters relating to their employment. The rights that are granted to trade unions under Section 29(4) of the Labour Act include the following:

• the right of access to employees for the purposes of advising them on how the law relates to their employment, assisting them to form workers’ committees and ensuring that their rights are observed;
• the right to be provided by employers with the names and other relevant details of their members;
• the right to make representations to a determining authority or to the Labour Court;
• the right to form or be represented on any employment council; and
• the right to recommend collective job action.

Workers' Committees

Workers are represented in the workplace by workers' committees. These are comprised of employees who are elected or appointed to the workers' committee by their fellow employees. It is not mandatory that there be a workers' committee in every undertaking.

Managerial employees may not be elected or appointed to a non-managerial employees' workers' committee and vice versa. Employees are entitled to assistance from a labour officer or a trade union when setting up the workers' committee.

Employers are under a legal obligation to negotiate in good faith with the workers' committee. 

The functions of a workers' committee are set out in Section 24 of the Labour Act as follows: 

• to represent the employees in any matters affecting their rights and interests;
• to negotiate with the employer a CBA relating to the terms and conditions of employees' employment;
• to recommend collective job action to the employees; and
• to represent the employees at works council level.

Works Council

The works council is a workplace forum made up of equal numbers of workers' committee members and managerial representatives. It exists in order to allow employer and employee representatives to discuss issues  relating to employee welfare, workplace safety and productivity, among other things. The role of the worker representatives in the works council is to represent and advance the interests of the workers.

There are two types of CBAs that are recognised under Zimbabwean law:

• CBAs that are negotiated between the workers committee and the employer under the terms of Section 24 of the Labour Act; and
• CBAs that are negotiated between a registered trade union and a registered employer organisation.

Workplace-Level CBAs

CBAs that are negotiated between the employer and the workers' committee may address the terms and conditions of employment for employees who are represented by the workers' committee. They are subject to ratification by at least 50% of the employees and by whichever trade union is mandated to represent the employees. They are binding only on the employer concerned.

In the case of conflict between a collective bargaining agreement negotiated by the workers committee and one negotiated between an employer’s organisation and a registered trade union, the latter prevails unless the former has more favourable conditions.

Industry-Level CBAs

CBAs between employer organisations and registered trade unions are negotiated at National Employment Council level. They may regulate any conditions of employment, including working hours, overtime, leave entitlement, health and safety standards, and minimum wages and benefits.

Industry-level CBAs must be registered and published as statutory instruments, thereafter becoming binding on all the employers and employees in the industry or sector to which the agreement relates. The provisions relating to minimum wages and benefits are reviewed regularly ‒ in some cases, several times per year.

Termination/Dismissal

Zimbabwean law creates a distinction between termination and dismissal. Although dismissal for misconduct is a form of termination, it is distinct from other forms of termination and is governed by a separate set of rules.

A contract of employment may be terminated in the absence of misconduct in the following circumstances:

• on notice where the contract of employment is of fixed duration;
• by mutual agreement;
• through the employee’s resignation;
• as a consequence of retrenchment; or
• through retirement.

Dismissal for misconduct is permitted only where it is effected in terms of an employment code of conduct, or ‒ in the absence of an employment code of conduct – under the national employment code of conduct. The applicable code of conduct will define what constitutes misconduct on the part of an employee. It is, however, accepted that codes of conduct do not contain an exhaustive list of offences, and that some acts of misconduct may be determined from the common law or the terms of the employment contract.

The procedure to be followed where an act of misconduct has been discovered is outlined in the applicable code of conduct. Generally, the employee is notified of the commencement of investigations, where after a charge sheet is issued. Suspension may follow, depending on the nature of the offence and the provisions of the code of conduct. A disciplinary hearing will be held, at which the employee is entitled to be present with witnesses and a representative. A determination and the imposition of a penalty will mark the conclusion of the proceedings.

There is, in all cases, a right of appeal against the initial determination. The appellate body may be an internal appeals committee or authority, or it may be external (eg, a labour officer or the Labour Court). There is also a right to seek a review of the disciplinary proceedings on the basis of procedural irregularities.

A dismissal will be set aside if it was procedurally irregular or the appellate body finds that the act of misconduct was not proved. If the dismissal is set aside, an order for the reinstatement of the employee will be issued – with an alternative of damages for unlawful dismissal.

Collective Redundancies

An employer is entitled to retrench employees whose positions or duties have become redundant due to technological changes or the re-organisation or restructuring of the workplace. Employees may also be retrenched to reduce expenditure or costs, or as a consequence of the closure of the enterprise in which they are employed.

An employer who intends to carry out a retrenchment exercise is required to give notice of such intent to the works council established for that undertaking. In the absence of a works council, the notice should be issued to the National Employment Council for the sector or industry. In the absence of both the works council and the National Employment Council, the notice should be issued to the Retrenchment Board. 

The terms of the retrenchment will be negotiated at works council level. In the absence of a works council, the employer may conduct the negotiations with the affected employees.

Retrenchment packages

The Labour Act stipulates the minimum retrenchment package payable to retrenched employees in Section 12 (12C). In the absence of an agreement between the parties on a retrenchment package that surpasses the minimum package, the employer is required to pay the minimum retrenchment package of one month’s salary for every two years of service.

A retrenchment exercise that does not follow the stipulated procedure – or one carried out in the absence of duly recognised causes of redundancy – may be treated as an unfair dismissal, thereby rendering it susceptible to being set aside.

An employer’s failure to pay the retrenchment package on time or at all constitutes an unfair labour practice. In cases where the employer alleges financial incapacity to pay the stipulated minimum severance package, the employer may apply for an exemption from paying the retrenchment package on time or at all. The application will be addressed to the employment council for the industry or, in the absence of an employment council, to the Retrenchment Board.

Termination on Notice

A contract of employment may only be terminated on notice in the following circumstances:

• where the applicable code of conduct makes provision for termination on notice;
• where the contract is of fixed duration or for the performance of some specific service;
• where the termination is by mutual consent; or
• where the contract is terminated pursuant to a retrenchment exercise.

The formalities for termination on notice in relation to a code of conduct will be stipulated in the applicable code of conduct. The procedure relating to termination pursuant to a retrenchment exercise has been discussed in 7.1 Grounds for Termination. In the case of termination by mutual consent, there are no stipulated formalities, save that the termination agreement must be in writing. The termination of a fixed-term contract on notice is effected through a notice issued to the employer notifying them of the termination, as well as the effective date of the termination.

The applicable notice periods are stipulated in Section 12(4) of the Labour Act as follows:

• three months for contracts for a period of two years or more;
• two months in the case of a contract for a period of one year or more but less than two years;
• one month in the case of a contract for a period of six months or more but less than one year;
• two weeks in the case of a contract for a period of three months or more but less than six months; and
• one day in the case of a contract for a period of less than three months or in the case of casual or seasonal work.

An employer may elect to pay the employee cash in lieu of notice, rather than requiring them to serve the stipulated notice.

In addition, an employee whose permanent contract is terminated on notice is entitled to a severance package calculated at the rate of one month’s salary for every two years of service. The parties are, however, entitled to negotiate a severance package that surpasses the stipulated minimum.

No external authority is required in order to effect a termination on notice – except where the termination is by reason of redundancy, in which case the Retrenchment Board should be notified of the retrenchment.

Summary dismissal occurs when an employee is dismissed from employment without notice as a consequence of a grave act of misconduct. The dismissal will be preceded by disciplinary proceedings under the applicable code of conduct. The applicable procedure has been outlined in 7.1 Grounds for Termination.

To summarise:

• the employer identifies the offence as defined by the code of conduct;
• the employee is notified of the commencement of investigations;
• the employee may also be suspended with or without pay;
• a charge sheet is issued informing the employee of the charge that they are facing;
• a disciplinary hearing will be held at which the employee is entitled to be present with their witnesses and representative; and
• a determination will be made and a penalty imposed in line with the penalty that is stipulated in the code of conduct.

An employee who is dismissed for misconduct is not entitled to notice or notice pay. They are, however, entitled to terminal benefits comprising:

• any unpaid salaries and benefits due at the date of dismissal;
• cash in lieu of accrued vacation leave; and
• any gratuity that may be due under the collective bargaining agreement.

A dismissed employee has the right to appeal against the dismissal to any internal appellate bodies, and thereafter to the Labour Court.

The employer and employee may agree to terminate the employment contract. This is referred to as mutual termination. The agreement has to be in writing. Best practice requires that the termination agreement should record:

• the effective date of the termination;
• the agreed termination package;
• the date on which or by which the package should be paid; and
• any other consequences of the termination, such as the return by the employee of the employer’s property.

In the event that the termination relates to an employee who was employed on the basis of a contract without limit of time, the employer is obliged to pay the minimum termination package stipulated in the Labour Act, unless the parties agree to the payment of a package exceeding the minimum.

There are no other formalities that are required by law.

All employees are equal and may be subjected to disciplinary action if the circumstances so require. This is also the case for employee representatives. However, if it can be demonstrated that a dismissal amounts to the victimisation of employee representatives, the dismissal will be considered unlawful.

Every employee has the right not to be unfairly dismissed. An employee is unfairly dismissed if the employer fails to show that the employee was dismissed under the terms of a registered employment code of conduct. In the absence of an employment code of conduct, the employer should show that the dismissal was carried out in accordance with the terms of the model or national code of conduct.

Disciplinary Proceedings

Disciplinary proceedings that are procedurally irregular may be set aside on review, particularly where the irregularity prejudiced the employee in the conduct of their defence. Examples of procedural irregularities include:

• the use of an inapplicable code of conduct;
• a failure to constitute the disciplinary authority or committee as stipulated in the code of conduct; or
• a failure to permit the employee to be accompanied by their legal representative.

Appeals

A dismissal may be found to have been unlawful on appeal if there was insufficient evidence to prove that an act of misconduct was committed as alleged. 

A successful appeal or application for review will result in the setting aside of the disciplinary proceedings, with or without loss of salary and benefits. If the dismissal is set aside and the employee is reinstated without loss of salary and benefits, the employer will be required to pay all the unpaid salaries and benefits that would have been due to the employee between the date of dismissal and the date on which the order for reinstatement was made.

Damages

An employer who elects not to reinstate the employee following an order for reinstatement will be required to pay the employee damages for loss of employment. These are calculated on the basis of the salary that would be due to the employee for the period of time it would take them to secure alternative employment. 

In applications for the review of disciplinary proceedings, a finding that the proceedings were irregular may result in the dismissal being set aside and the matter being remitted to the employer for a re-hearing in a procedurally proper manner.

Under the terms of Section 5 of the Labour Act, employees and prospective employees are protected from discrimination on the grounds of race, tribe, place of origin, political opinion, colour, creed, gender, pregnancy, HIV/AIDS status or disability.

In addition to being subject to a claim for damages, an employer who contravenes the right of an employee or prospective employee to equal treatment may face criminal charges according to the terms of Section 5(3) of the Labour Act.

An employee who has been subjected to discrimination may also seek an order directing the employer to cease the discriminatory conduct.

An employee who makes a civil claim for damages arising from discriminatory conduct, or for an order directing the employer to cease such conduct, has the onus of proving the allegation of discrimination on the balance of probability.

In the event that criminal charges are brought against the employer, the applicable standard of proof is proof beyond a reasonable doubt.

The following are the authorities and courts that have the jurisdiction to hear labour matters.

Labour Officer

This is an official employed by the Ministry of Labour under the terms of Section 121 of the Labour Act. Labour officers are generally tribunals of first instance, and they conduct conciliation proceedings in accordance with Section 93 of the Labour Act. In the event that conciliation fails, they are entitled to make a ruling that will be subject to confirmation by the Labour Court. Labour officers also hear appeals in disciplinary matters that are conducted under the National Employment Code of Conduct.

Designated Agent

This is an individual employed by an employment council under the terms of Section 63 of the Labour Act. They have the same jurisdiction as labour officers to conduct conciliation proceedings. Their jurisdiction is, however, limited to matters that arise in the industry in which the employment council is registered. They are entitled to either issue draft rulings, which are subject to confirmation by the Labour Court, or make final determinations that are not subject to confirmation. Final determinations may be set aside on appeal or review by the Labour Court.

Labour Court

Under Section 89(1) of the Labour Act, the Labour Court has the jurisdiction to hear applications and appeals in terms of the Labour Act or any other enactment. In the exercise of its functions, the Labour Court may refer a dispute to a labour officer, designated agent or arbitrator. The Labour Court also has powers of review over labour matters.

An appeal on a question of law against a decision of the Labour Court lies with the Supreme Court.

Class Action Claims

According to the terms of the Class Actions Act [Chapter 8.17], a class action may be brought before the High Court on behalf of any class of persons. The class action should be preceded by an application for leave to bring the action.

Although the law does not provide for class actions in the Labour Court, proceedings in the Labour Court or before labour officers or designated agents may be instituted by or against several named appellants, applicants or respondents.

Representation       

Litigants may be represented in proceedings before labour officers, designated agents or the Labour Court by legal practitioners, trade union officials or employer organisation officials. Litigants may also appear as self-actors. In proceedings before the Supreme Court, employees may either appear as self-actors or they may be represented by a legal practitioner.

A dispute may be resolved through arbitration in circumstances where:

• the dispute is referred to arbitration by the Labour Court under the terms of Section 89(1)(d) of the Labour Act;
• the parties agree for the referral of the dispute to arbitration under Section 93(1) or 93(5)(b) of the Labour Act, which is known as voluntary arbitration; and
• the dispute is a dispute of interest and the parties are engaged in an essential service.

In the third above-mentioned scenario, the labour officer to whom the dispute is referred is required in accordance with Section 93(5)(a) of the Labour Act to refer the dispute to compulsory arbitration if it is not resolved through conciliation.

Arbitration proceedings may also be held in accordance with an arbitration agreement and are conducted in accordance with the provisions of the Arbitration Act [Chapter 7:15]. An appeal on a question of law against an arbitral award that is issued following referral to arbitration under Sections 89 or 93 of the Labour Act lies with the Labour Court.

An award issued pursuant to arbitration proceedings that are held in accordance with an arbitration agreement is, however, not subject to appeal. It may only be set aside following an application to the High Court under the terms of Articles 34 and 35 of the Schedule to the Arbitration Act. Such an application will succeed only if it is demonstrated that the award:

• offends against public policy; or
• is subject to some irregularity ‒ for instance, that the dispute is incapable of resolution through arbitration.

The court or arbitrator is endowed with the discretion to make an appropriate order of costs. Usually costs are awarded to the successful party on the party-and-party scale, which is lower than the attorney-and-client scale. Where circumstances warrant, however, costs will be awarded to the successful party on the attorney-and-client scale. An example of such circumstances would be where the unsuccessful party’s conduct was reprehensible and thus deserving of a punitive order of costs.