Anything that brings two or more people together requires rules and regulations. In an employment relationship, we have employers and employees.
This type of relationship is governed by employment contract terms and human resources policies and procedures.
Ideally, where an employment contract falls short, the human resources policies and procedures must take over. Both documents must always be compliant with the employment laws. But as in any other relationship, disputes come with the package to some extent. In such instances, the grievance and disciplinary policies and procedures must take over.
The documents mentioned earlier outline routes through which complaints or disputes are to be channelled and how they are to be handled. The Trade Disputes Act, in this instance, provided some guidance. What this law does is provide procedures for the settlement of disputes generally and regulation of industrial action.
This Act “shows a lot more muscle” when it comes to the processes entailed in resolving disputes once they are referred to the Commissioner of Labour. It goes deeper by outlining the dos and don’ts regarding the phases of dispute resolution. This article aims to highlight the dos and don’ts with reference to representation during mediation and arbitration.
According to Section 2 of the Trade Disputes Act, mediation “includes facilitation, conducting a fact-finding exercise, and the making of an advisory award”. In simpler terms, the mediation process is a flexible interaction between two disputing parties with an impartial third party facilitating the proceedings to try and resolve the matter in a more amicable manner.
According to Section 5(a) of the Trade Disputes Act, “the Commissioner or the Labour Officer delegated to do so, shall, upon receiving a matter referred in accordance with subsection (1) forthwith assign a mediator from the panel referred to under Section 4 to attempt to resolve the dispute through mediation…”.
Now, when we get to the arbitration process, Section 2 of the Act defines it as a “dispute resolution involving one or more neutral third parties agreed to by the disputing parties and whose decision is binding on such parties”. Since we have a better understanding of what the two processes are, let us get to the representation limitations.
Section 10(1) of the Trade Disputes Act states that “in any mediation or arbitration proceedings, a party to a dispute may appear in person or be represented only by a member or officer of that party’s organisation, a co-employee if the party is an employee or a director or employee of that person if the party is a juristic person”.
It is very evident that there is no indication of legal representation permitted during mediation or arbitration. However, there is a twist. Section 10(2) of the Trade Disputes Act continues to highlight that “notwithstanding subsection (1), an arbitrator may permit a legal representative to represent a party to a dispute in arbitration proceedings if the parties to the dispute agree or at the request of a party to the dispute, the arbitrator is satisfied that the dispute is of such complexity that it is appropriate to allow the party to have legal representation, and the other party will not be prejudiced”.
In a nutshell, what the section indicates is that there are exceptions during arbitration, and they are limited to the disputing parties agreeing and the arbitrator.
Representation during mediation and arbitration has its limitations. However, the labour law is a lot more understanding where the process of arbitration is concerned. Legal representation may be allowed if the parties agree or if the arbitrator considers it just.
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