Daniel Nemukuyu Senior Court Reporter
The legality of labour consultants and their right to be heard in arbitration proceedings is under the spotlight after the Zimbabwe Assemblies of God Africa (ZAOGA) approached the Supreme Court contesting the practice.
Self-styled labour consultants, who are not registered anywhere, have taken over the work of lawyers to the extent of appearing before Labour Court judges as “legal representatives”. Most of them are human resources practitioners with little knowledge of labour law, but have the guts to elbow out lawyers from the business due to the paltry fees they charge for the work.
A proliferation of such consultants last year prompted the senior judge of the Labour Court Justice Gladys Mhuri to issue out a circular barring them from her court. Circular number 2 of 2017, dated October 6 2017 ordered labour consultants to cease offering legal representation.
It reads: “Section 92 of the Labour Act provides persons who have the right of audience. It has been observed with great concern that labour consultants insist on representing parties in the labour court despite them having no right of audience.
“This practice is perpetrated by some employers who issue labour consultants with contracts of employment as human resources officers when in actual fact they are not so employed, but only provide consultancy work on labour issues as and when these arise.
“One such scenario is where one labour consultant is said to be employed as a human resources manager by different institutions at the same time and to prove his right of audience produces different employment contracts for each case as and when he appears in the Labour Court. This practice is a breach of clear provisions of the law for which serious consequences may follow.”
Despite such a circular, labour consultants continued representing litigants in labour disputes with some preferring to appear before labour arbitrators. The Labour Court judge in the case in which ZAOGA is being sued for underpaying an employee Mr Kasikai Mashonganyika, Justice Bridget Chivizhe ruled that labour consultants can represent litigants before an arbitrator.
Mr Mashonganyika was represented by a consultant known as E Mhere in the arbitration proceedings. ZAOGA’s lawyer Mr Caleb Mucheche of Matsikidze and Mucheche Legal Practitioners took the matter to the Supreme Court contesting the decision of the Labour Court. On Tuesday, the Supreme Court heard arguments from both parties before reserving its judgment.
Mr Mucheche argued that an arbitrator, in compulsory arbitration proceedings, enjoys the same powers as the Labour Court and that consultants do not have right of audience before an arbitrator. He argued that only registered legal practitioners and registered trade unionists can act on behalf of litigants in labour matters.
“It is quite clear that the court a quo erred by making a finding that labour consultants have locus standi to represent parties in arbitration proceedings,” reads the heads of argument.