A perfect storm of manpower shortages, insufficient resources, prolonged negotiations and a high staff turnover hamper the expeditious resolution of labour matters. This state of affairs has frustrated labour consultants and aggrieved workers with cases at the Office of the Labour Commissioner.
However, from the vantage point of the office
itself, there is more than meets the eye regarding the mountain of challenges.
“The office is indeed experiencing delays in addressing labour cases, primarily caused by a lack of resources, high labour turnover, postponements by either party, prolonged negotiations by parties, unwillingness to settle matters at conciliation, and a shortage of arbitrators,” said acting labour commissioner Kyllikki Sihlahla in response to
detailed questions recently.
She said the shortage makes it difficult for
arbitrators on board to always have open diaries, resulting in cases taking a long time to be heard, depending on the next available date of an arbitrator.
“Additionally, if an arbitrator who has been handling a case resigns, there is a likelihood that the case will not be resolved on time as it needs to be reallocated to another arbitrator, who may already have a significant number of cases scheduled,” she explained.
What is more, the Labour Act allows any party to a dispute to appeal to the Labour Court if they are dissatisfied with the decision made by an arbitrator.
“Therefore, filing an appeal also contributes to delays in the event the matter is remitted to the Labour Commissioner for a hearing de novo [start afresh],” the commissioner lamented. Presently, regions such as Omaheke, Kunene, Ohangwena and Kavango West do not have arbitrators.
As such, they rely on arbitrators from nearby regions to attend to cases in those regions. Altogether, there are 54 positions for arbitrators on the staff establishment of the Office of the Labour Commissioner countrywide.
Out of that, only 32 have been budgeted for.
“Currently, 27 of these positions are filled, and the remaining five will be filled before 31 March 2024. However, the remaining 22 vacant positions, which are not budgeted for, will only be filled once funds are available. The vacant positions remain unfilled due to financial constraints,” Sihlahla stressed.
She continued: “However, the Secretary to Cabinet [George Simataa] has approved the advertising of five positions for arbitrators, which became vacant last year after the incumbents either terminated their service with the ministry, or were promoted.”
Discontent
Labour consultant Olsen Kahiriri from KC Kahiriri Consultancy poked holes in the Labour Commissioner’s office operations.
For him, the biggest challenge is the shortage of arbitrators in the country, which fuels delays in the conclusion of labour matters.
Another issue for the outspoken former unionist-turned-labour consultant is that “the Act provides that after a labour case is finalised, the outcome [ruling] should be made within 30 days. However, there was a court ruling against this provision, and now arbitrators are no longer pressed for time and take forever to finalise a case. As a result, workers are suffering because of these delays. I have a client’s case going on for five years now. The employer has frozen his salary and he can’t even get a job elsewhere, just because of these delays.”
He was not done.
“The government itself is not serious with the office. They don’t hire the right arbitrators. The other issue is that they are not paying arbitrators overtime, and that should be a priority. Because when do these arbitrators make decisions if each day, they are locked up in conciliation and arbitration the whole day? The only time they get to make those decisions is after hours,” he opined.
Kahiriri, who hardly minces his words, had a suggestion for the office.
“We must move the Labour Commissioner’s Office from the department of labour and take it to the Ministry of Justice to form part of our court system. The commissioner’s office is the court of first instance in labour issues, although it’s not a structured court. So, if administration is legal, it must be pushed to the justice system because it is a judicial process,” he said.
Kahiriri also proposed that the situation whereby arbitrators are appointed by the Public Service Commission cannot continue, as it defeats the administration of justice.
“When we have cases against the government, how neutral is the arbitrator expected to be if you’re taking a case against a person who should grant the same arbitrator study leave, promotions and all these things? So, the Labour Commissioner’s independence is also questionable,” he continued.
In the not-so-distant past, labour minister Utoni Nujoma blamed the slow finalisation of labour cases on the involvement of consultants and lawyers in these cases.
Asked to explain how lawyers and consultants derail the finalisation of labour matters, Sihlahla replied: “In situations involving labour consultants and legal practitioners, delays are often encountered due to their prior commitments elsewhere, while the clients they represent are readily available for their proceedings to commence.”
“Consequently, the scheduled matter may not proceed on the designated day, and will be rescheduled for a later date. However, the parties tend to attribute the delay solely to the Office of the Labour Commissioner, overlooking the fact that the commissioner had initially provided an earlier date, which could not be realised due to the unavailability of their representatives.”
Piling up
The thinly-stretched Labour Commissioner’s office is inundated with cases. On average, the office receives around 95 cases per month.
However, unresolved cases dating back to as far as 2019 still haunt the labour commissioner.
Back in 2019, 4 514 cases were handled, out of which 2 267 were resolved, while 2 261 were not finalised. The following year, 5 830 cases were registered, out of which 2 918 were resolved, while 2 914 remained pending.
At the height of the deadly Covid-19 pandemic, which brought economic activity to a standstill and forced many companies into retrenching staff, 4 603 cases were handled, 2 127 resolved and 2 476 were pending in 2021.
There was another spike in 2022, as 5 745 cases were registered with the labour commissioner’s office. Of this figure, only 2 904 were resolved, while 2 844 were unresolved.
This figure skyrocketed in 2023. They
dealt with 7 172 cases, of which 3 448 were resolved, while 3 724 are still pending. That equates to a 48.39% success ratio.
A close look at statistics provided by the office shows that between 1 January and 31 March last year, they handled 1 560 cases in total. Of these, 390 were resolved at conciliation, while 240 were resolved at arbitration. 930 cases are still pending.
Between April and June, 1 930 labour cases were recorded by the commissioner’s office, of which 620 were resolved at conciliation, while 311 were dealt with at arbitration. The pending cases are 999.
The highest number of cases, 2 048, were registered from July to October 2023. During that period, 747 cases were resolved at conciliation, whereas 322 were determined at arbitration, while 979 are pending.
During the last quarter of 2023, 1 634 cases were handled, of which 504 were resolved at conciliation, while 314 were dealt with at arbitration.
Hard work
Acting Labour Commissioner Sihlahla and her team are not resting on their laurels, and are working hard to address the backlog. “The office has been prioritising pending cases in order to reduce the backlog, and has undertaken initiatives to recruit more arbitrators, including utilising the services of part-time arbitrators,” she told New Era.
“The fervent desire of the labour commissioner is to foster the establishment of registered entities, such as trade unions and employers’ organisations, that are dedicated to safeguarding the interests of their members, and effectively regulating labour relations throughout the country”, she noted.