ADR Modes

Negotiation, conciliation/mediation, arbitration, and adjudication are the primary dispute resolution models employed in many countries (ILO 2021). They serve as an extremely useful barometer of the level of democracy and the rule of law in modern civilisations (Araujo et al Reference Araujo, Safradin and Brito2020). The first three are examples of consensual dispute resolution, where parties involved in the dispute decide on a resolution with or without the assistance of outside parties (Shonk Reference Shonk2022). Arbitration, however, is more similar to adjudication and, thus, to jurisdictional modes of dispute resolution where a third party solves issues (Araujo et al Reference Araujo, Safradin and Brito2020).

Negotiation (often collective bargaining in employment disputes) is a process in which the parties involved in the dispute, work to identify a solution to the problem, generally with minimal intervention of a third party (Araujo et al Reference Araujo, Safradin and Brito2020). Nevertheless, in certain institutions, the threat of industrial action can serve as a preliminary to negotiations (Araujo et al Reference Araujo, Safradin and Brito2020). Collective bargaining is frequently regarded as the initial step in the resolution of disputes in these systems (Shonk Reference Shonk2022).

Conciliation is a process where a neutral third party helps the disputing parties come to a resolution by guiding them through formal processes (Araujo et al Reference Araujo, Safradin and Brito2020). Likewise, the process of mediation helps parties to investigate the interests underlying their stances, rather than imposing a resolution (Shonk Reference Shonk2022). The goal of a mediator is to assist parties in reaching a lasting, consensual, and non-binding resolution, while working with them both jointly and individually (Ampeire Reference Ampeire2017). Mediation is seen as a quick, inexpensive, and efficient ADR method.

By contrast, arbitration is a process which can resemble a court trial in which the arbitrator’s rulings are deemed to resolve disputes (Shonk Reference Shonk2022). A neutral third party, an arbitrator, hears the arguments from the parties, settles their differences, and then renders an award or verdict (Booysen Reference Booysen2018). Normally, the decision is final and binding. Arbitration can be used to resolve both rights and interest disputes (Araujo et al Reference Araujo, Safradin and Brito2020). Similar to conciliation, arbitration submissions might be either voluntary or compulsory. The submission of interest disputes to compulsory arbitration, unless in the case of essential services, is uncommon (Dupont et al Reference Dupont, McDermott, Kirk and Anderson2018).

Since different ADR modes may result in different outcomes for different parties in a dispute, it is crucial to choose the proper mode and process (Feng & Xie Reference Feng and Xie2020). The use of the ADR modes outlined above presents an opportunity to replace ineffective formal ADR mechanisms with more adaptable and accessible ways of promoting peace as part of a bigger reform initiative (Sigafoos & Organ Reference Sigafoos and Organ2021).

Appropriateness of ADR Modes

Araujo et al (Reference Araujo, Safradin and Brito2020) assert that to assess the appropriateness of ADR in claiming labour rights and accessing labour justice, five dimensions of the variable of proximity between justice institutions and citizens should be identified: geography, costs, time, culture, and visibility. They argue that Europe, geography ‘appears to be a less relevant variable by which to compare ADRs and courts’ accessibility’ (Aruajo et al Reference Araujo, Safradin and Brito2020, vi). Costs and time are two dimensions of proximity in which ADRs tend to present clear cross-country advantages when compared to courts. Cultural or human proximity is an important locality dimension for the creation and development of dispute resolution forums that use common sense language and familiar routines, while at the same time being trusted by citizens, which may further reduce the distance between litigants and justice institutions.

Brown’s (Reference Brown2021) comparative study of mediation in Spain and other European countries revealed that Greece, in particular, took a brave step forward by emulating Italy’s legal changes. Secondly, Greece moved towards the institutionalising of mediation into its civil and commercial procedural systems. Mediation moved from the shadows of an alternative scheme into the mainstream by being a part of the Greek regulatory system.

Elisavet (Reference Elisavet2019) indicated that the European Union (EU) had seen significant progress in the resolution of consumer disputes in the e-commerce sector following the establishment of the Online Dispute Resolution (ODR) platform. On the other hand, the ODR platform has some definite regulatory limitations. For example, consumers are not informed by the platform when traders deny the ADR resolution of their dispute. Furthermore, it is questionable whether the ODR contact points, which notify consumers after their complaints have been disregarded, contribute to the rapid settlement of disputes. Rather it may add another level of bureaucracy to the process, since this information could be provided automatically by the ODR.

Accessibility of ADR Modes

Bushe’s (Reference Bushe2019) comparative study of ADR in Botswana, South Africa, and Zimbabwe revealed that South Africa has made commendable steps towards making labour dispute resolution accessible to all employed persons in the country. The study found that in some respects, ADR in South Africa has achieved some milestones in becoming efficient, especially when it comes to enacting legislation that supports its adoption and use. For example, the enactment of the LRA in South Africa ushered in a new labour dispute settlement regime quite different from that in force during the apartheid era which had not recognised the rights of native Africans. South Africa installed an independent regulatory body the Commission for Conciliation and Mediation and Arbitration (CCMA) to dispense ADR in labour disputes. Access to justice and rights gives the rule of law life by allowing people to exercise their rights, whether they be private or human (Bingham Reference Bingham2016).

By contrast, given the Labour Administration Department’s responsibility for ADR processes in Zimbabwe, it is evident that ADR has several challenges. It is almost conclusive that most matters before the courts were referred by applicants for registration to enable enforcement, and that matters before the Labour Court were brought after they had failed to be enforced directly or were mediated or arbitrated upon by the tribunal. This is because the Labour Act does not provide direct access to the Labour Court for resolving employment disputes. Only matters that have been conciliated or arbitrated upon could be referred to the Labour Court for settlement. All employment disputes must be conciliated first, except when parties agree to go to voluntary arbitration. This study identified specific cases in respect of their value in analysing the efficacy of ADR in Zimbabwe. Very few matters that went to the Labour Court had been directly allocated, but rather, were referred to as a consequence of failed conciliation or arbitration. After an arbitral award is issued, it is instructive that such an award is registered with the Magistrate or High Court of Zimbabwe. In terms of the Labour Act and Model Law, a submission for registration of an arbitral award ought to be lodged with either the High Court or the Magistrate Court, depending on the jurisdictional value or quantum at issue in the given matter.

The study by Bushe (Reference Bushe2019) notes that like Zimbabwe, Botswana does not have an extant ADR system that operates independently of the executive government. Rather, ADR is administered by the Ministry of Labour and Home Affairs under the auspices of the Minister and Commissioner of Labour in Botswana and the Minister and Labour Officers in Zimbabwe, respectively.

In contrast, the Republic of South Africa (RSA) has both a legislative and political will and commitment to developing an efficacious ADR system, as demonstrated by the establishment of an independent body (CCMA) that administers ADR as a labour dispute settlement mechanism (Bushe Reference Bushe2019). The LRA in RSA has recognised conciliation, mediation, and arbitration as labour dispute settlement mechanisms. However, in the case of Botswana and Zimbabwe, there is no independent body that administers ADR. The Labour Act in Zimbabwe recognises the inevitability of ADR in the form of conciliation/mediation and arbitration as a labour dispute mechanism. Conciliation and arbitration of disputes are administered by the government through its Labour Officers or in the alternative NECs. For instance, the elements of independence and unbiased decisions are an unlikely possibility if there is a dispute between an agency of government and its employees. This becomes a troublesome challenge, especially when the adjudicator of such a dispute is also a government employee from a sister ministry who may ordinarily be careful not to rule against his or her employer; as the saying goes ‘he has to remember where his bread is buttered’ or ‘not to bite the hand that feeds him’. Sithole and Munyai (Reference Sithole and Munyai2017) also revealed that in terms of speed, the Labour Court has been faced with a backlog of cases. In terms of access, the Labour Court is accessible to all parties and is effective in handling workplace cases.

The common thread running throughout this previous research is that ADR mechanisms have been implemented by different governments worldwide. Nevertheless, in many countries, there is still a lack of water-tight laws and regulations which would ensure speedy and unbiased resolution of disputes. It is against this backdrop that we explore this field, replete with implementation challenges and bureaucracy, seeking to bring new knowledge to pique the interest of lawmakers and management leaders towards promulgating sustainable ADR laws.

Negotiation/collective bargaining

All the participants revealed that in Zimbabwe, negotiation or collective bargaining is held at the plant level (works council) and the sector/industry level (national employment council). At the plant level, trade unions do not play a major role in negotiations. Rather employees elect workers’ committee members who will represent them in the works council (Section 24 of the Labour Act). As provided for in Section 25A of the Labour Act, a works council consists of an equal number of management and employee representatives. One HR Practitioner said,

At the industry level, national employment councils are formed in various sectors in terms of Sections 56 and 57 of the Labour Act. Section 74 of the Labour Act provides for collective bargaining at the industry level. A Designated Agent explained,

The best way of resolving disputes under collective labour law is often regarded to be mutually beneficial collective bargaining between employers and unions (Papadopoulos et al Reference Papadopoulos, Lopez-Andreu and Jamalian2021). In Zimbabwe, there is no involvement of a third party in the national employment council or works council. This is in line with the argument made by Araujo et al (Reference Araujo, Safradin and Brito2020) that negotiation is a process produced with minimum or no involvement of a third party and in which the parties to a dispute bargain to find a resolution. Therefore, negotiation in a broader sense has a stronger focus on the collective employment relationship (Shonk Reference Shonk2022). The International Labour Organization (2021) encourages parties to negotiate as a means to a solid foundation for industrial transformation. Negotiations at the works council must be in line with, or more favourable to, the industry collective bargaining. At both the plant level and industry level, collective bargaining agreements and codes of conduct are negotiated.

Collective bargaining is frequently regarded as the initial step in the resolution of disputes in these ADR modes (Araujo et al Reference Araujo, Safradin and Brito2020). Participants (trade unionists and designated agents) disclosed that at the enterprise/plant level, if the dispute of rights is not resolved, an aggrieved party can approach the designated agent or the labour officer, and the conciliation process can then start. Conciliation is compulsory where the parties to a labour dispute are required to have recourse to it (Papadopoulos et al Reference Papadopoulos, Lopez-Andreu and Jamalian2021). The same group of participants also affirmed that parties will be guided by the industry collective bargaining agreement when it is a dispute of interest, or if they approach their organisations and trade unions at the industry level they can present their case. If negotiations break down or parties have failed to reach a consensus at the industry level, the matter is referred for voluntary arbitration. Each party can appoint its arbitrator, and the two arbitrators can preside over the matter and devise a binding decision. It is important to note that an aggrieved party can only seek a review of the arbitral award at the High Court. The fundamental principle guiding the processes for resolving rights or interest disputes is that failure to settle through negotiation should be decided by courts or tribunals (arbitrators), as they involve the determination of pre-existing rights, duties, or obligations that both parties are required to uphold (Araujo et al Reference Araujo, Safradin and Brito2020). Thus, the third party in this scenario at the industry/sector level is no longer helping the parties to resolve the dispute through negotiations but finalising the matter through a judgement.

The study established that both industry-level and enterprise-level negotiations were appropriate for employers and employees because it prevents industrial action and job losses and enhances productivity. Employers are comfortable with negotiations at the plant level because they dominate the negotiation process. As for employees, they seem to favour negotiations at the industry level, especially minimum wages and health and safety issues. However, trade unions and legal practitioners agreed that there are still challenges because negotiations both at the enterprise and industry levels are dominated by employers. At the industry level, trade unions are weak because of splinter unions and worsened by the fact that those splinter unions are not part of negotiations. At the enterprise level, most of the issues discussed favour the employer whilst weakening the employees, especially productivity and retrenchment issues. Southern African nations are perceived as having unequal societies that influence the balance of power between disputants, with capitalists continuing to exert dominant power (Bushe Reference Bushe2019).

Although the research revealed that collective bargaining is appropriate, there are other challenges surrounding this mechanism. Zimbabwe is a developing country, and information on employee rights is lacking in various sectors. The reality of the Zimbabwean labour market is that a significant fraction of workers have very little or no formal education, and the majority of employers are small- to medium-sized firms, which often have employees who lack knowledge of employment relations and labour law. Workers suffer as a result of a lack of education, as they are unaware of their rights and the dispute resolution modes. In the workplace, disciplinary and grievance processes are largely used to resolve internal disputes. Many small- and medium-sized indigenous businesses do not have these systems in place, and they are not employed effectively. As a result, more disputes are resolved through conciliation, and when they occur, one party is typically punished for not following the correct processes for resolving internal disputes.

Conciliation

It is possible to force the hostile parties in a labour dispute to sit down and negotiate through conciliation (Araujo et al Reference Araujo, Safradin and Brito2020). As revealed by all the participants, the conciliation process is provided for in Section 93 of the Labour Act. The conciliation process was established in 2003, and the major challenge is that it has not been examined for appropriateness or effectiveness. Labour officers (employed by the government) and designated agents (employed by the national employment councils) are the responsible conciliatory authority. An aggrieved individual approaches the labour officer or designated agent with his/her matter. Where a national employment council appoints a designated agent, the labour officer has no jurisdiction in terms of Section 63(3b) of the Labour Act (Ndhlovu and Ndhlovu Reference Ndhlovu and Ndhlovu2023). Conciliation takes place when negotiations have failed or reached an impasse (Ali Reference Ali2016). Therefore, where the labour relations system is underdeveloped or when the parties are not accustomed to negotiating with one another, compulsion may be favoured (Papadopoulos et al Reference Papadopoulos, Lopez-Andreu and Jamalian2021).

The underlying principle of conciliation is the belief that the parties themselves are best equipped to resolve disputes (Feng & Xie Reference Feng and Xie2020). No decision is imposed by the conciliator. Instead, the conciliator fosters dialogue by looking into the real issues and assists in developing and accessing options for a just, equitable, and long-lasting resolution that is agreed upon by both parties (Booysen Reference Booysen2018). This means that in conciliation, the parties retain control over how their disputes are resolved because they are not required to have a third party decide their case at the end (Papadopoulos et al Reference Papadopoulos, Lopez-Andreu and Jamalian2021). This also confirms an observation by Shonk (Reference Shonk2022) that third parties should be handy, but only to help the parties to the dispute find a solution to their differences that is acceptable to both of them.

Study participants (labour officers, designated agents, trade unionists, and legal practitioners) revealed that before the 2015 amendment of the Labour Act, the dispute resolution modes were negotiation, conciliation, and arbitration. The labour officer or designated agent would conciliate the case and, if the parties agree, he/she issues a certificate of settlement. If the parties fail to agree, the labour officer/designated agent would issue a certificate of no settlement and refer the matter for arbitration. With the new amendment of 2015, the labour officer/designated agent after issuing a certificate of no settlement, has the option of making, if it is a dispute of right, a draft ruling which is subject to confirmation by the Labour Court (Ndhlovu & Ndhlovu Reference Ndhlovu and Ndhlovu2023). However, all participants revealed that rather than improving relations, these draft rulings have brought more confusion and setbacks, making the conciliation inappropriate. A trade unionist complained,

An affected employee said,

One of the legal practitioners said,

The confusion thus negatively affects the employees, while benefiting the employers. As it is, the Labour Officer is no longer resolving disputes; rather, he/she is just taking the complaints to the Labour Court. Although Araujo et al (Reference Araujo, Safradin and Brito2020) reasoned that ADR modes may follow judicially endorsed modes, there are challenges to the current dispute resolution system, especially accessibility and enforcement of rights, because disputes take a longer period to be finalised. Legal practitioners and trade unionists all concur that the 2015 amendment worsened the dispute resolution process, and they have argued that it is better to reintroduce the previous system.

ADR, like collective bargaining, conciliation, and arbitration, is frequently viewed as a better option than the more traditional processes for resolving labour issues because it is quicker and less expensive (Shonk Reference Shonk2022). However, trade unions and employees perceived that the conciliation of disputes of rights was inappropriate because it is costly, as there is a need for the Labour Court’s confirmation of the draft ruling. There are additional costs, not only for an application, but also to cover costs for the Sheriff of the Court, and transport. Parties are engaging legal practitioners because they are not well versed in Labour Court processes. Designated agents and labour officers revealed that previously, individuals could approach them at no cost and without the necessity of legal expertise or assistance. A Designated Agent said,

The introduction of draft rulings has brought adjudication or litigation to the conciliation stage, with a concomitant increase in the participation of legal practitioners, yet lawyers typically dominate litigation. Realistically, conciliation and mediation should be attractive as low-cost, flexible, and non-arbitral processes (Fells Reference Fells2000). Although conciliation is not a new mechanism in employment relations, it was made compulsory in Zimbabwe as a first step before proceeding to an adjudicative process like arbitration or the Labour Court and also before permitting parties to use power tactics of industrial action like strikes or lockouts (Nkoane Reference Nkoane2018).

Trade unions and legal practitioners concurred that when the cases were referred for arbitration, an appeal to the Labour Court was on a point of law in terms of Section 98(10) of the Labour Act. However, now with these draft rulings from labour officers/designated agents, at the Labour Court, the parties will be arguing not only on points of law but also on the same facts. Put simply, at the conciliation level parties will be wasting time waiting for a return day at the Labour Court, thus, overburdening the courts. By contrast, if it was an appeal against an arbitration award, it was going to be on point of law. This means if a Labour Officer issues a certificate of no settlement, the matter is going to be reheard and finalised at the Labour Court. Also, if the Labour Officer issues a certificate of settlement and the employer reneges on an agreement, the matter is going to be reheard and finalised at Labour Court. The reality is that it takes a very long time to get justice through the current dispute resolution process, unlike conciliation, where there is also decentralisation and self-responsibility in industrial relationships (Fells Reference Fells2000).

In addition, when addressing disputes which come to their attention, designated agents have two options, either to pursue the conciliation route or to determine the case. As one of the Designated Agents explained,

Determinations by designated agents are not enforceable at High Court. On the other hand, if parties try to pursue the conciliation route, designated agents still face the challenge of seeking confirmation as their draft rulings are not confirmed because they are not labour officers. This dilemma also affects labour officers who conciliate matters where a national employment council has a designated agent (Section 63(3B) of the Labour Act). Because NECs are rarely found in other towns or districts, labour officers are found to be covering many cases (Ndhlovu & Ndhlovu Reference Ndhlovu and Ndhlovu2022). When it comes to confirmation at Labour Court, the draft ruling is thrown out. Thus, ADR is not appropriate due to technicalities and confusion. This confirms an argument by Araujo et al (Reference Araujo, Safradin and Brito2020) that the main concern, expressed about labour ADRs in particular, is their potential for reinforcing the power disparity between the employer and the employee. Thus, the argument that ADRs are less formal and do not include legal representation at the early stages (Shonk Reference Shonk2022) becomes rhetorical. Therefore, the ability of an ADR mechanism to reduce power disparities between employees and employers and make the exercise of employment rights possible will be unattainable (Dupont et al Reference Dupont, McDermott, Kirk and Anderson2018).

Arbitration

The arbitration process is provided for in Section 98 of the Labour Act. Equally, the Labour Court can also refer a matter for arbitration. As explained by one of the legal practitioners,

Arbitration can be used to resolve both disputes of interest and rights (Nkoane Reference Nkoane2018). In systems that need compulsory arbitration, conciliation is frequently required as well (Araujo et al Reference Araujo, Safradin and Brito2020). Also, with the agreement of the parties, the labour officer/designated agent can refer the dispute or unfair labour practice to voluntary arbitration, if it is a dispute of interest. Arbitration is voluntary when it can only be initiated with the parties’ consent, and it is mandatory when either party or the government can do it on its initiative (Araujo et al Reference Araujo, Safradin and Brito2020). This is in line with the argument by Dupont et al (Reference Dupont, McDermott, Kirk and Anderson2018) that submission of interest disputes to compulsory arbitration unless in the case of essential services is uncommon. The use of arbitration may therefore be either voluntary or compulsory in Zimbabwe. In the case of compulsory arbitration, the parties to the dispute enter into arbitration after conciliation or order from Labour Court. In the instance of voluntary arbitration, the decision to submit to arbitration is left up to the parties.

The Labour Act’s Section 98 states that an arbitrator has the same authority as the Labour Court to hear and decide any dispute. Shonk (Reference Shonk2022) argues that in arbitration, which can resemble a court trial, a neutral third party serves as a judge and makes judgements to settle disputes. Thus, arbitration is closer to adjudication and, therefore, to jurisdictional modes of dispute resolution (Araujo et al Reference Araujo, Safradin and Brito2020). It can be concluded that collective bargaining, conciliation, and arbitration are designed to solve labour disputes and only a few complex cases spill over to the labour court.

Trade unions and employees argued that the arbitration process was appropriate because it was less costly and more effective than the current ADR system which requires draft rulings issued by labour officers. This is true considering the convenience and distance. This is the reason why participants argued that removing arbitration on disputes of rights was against Section 2A of the Labour Act which advocates for expeditious dispute resolution. One of the trade unionists explained,

Arbitration was going to be more appropriate if the rights disputes from conciliation were referred for arbitration. Looking at the current environment where there is high unemployment dominated by the informal sector, parties are mostly concerned about rights disputes. A similar idea is promoted by Shonk (Reference Shonk2022), who claims that ADR provides a way to provide workplace justice to more people, more quickly, and at a cheaper cost than traditional government channels.