Zimbabwe Revenue Authority Trade Union v Zimbabwe Revenue Authority and Zimbabwe National Road Administration

### Preamble
1
HH378-13
HC 8136/13
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ZIMBABWE REVENUE AUTHORITY TRADE UNION

versus

ZIMBABWE REVENUE AUTHORITY

and

ZIMBABWE NATIONAL ROAD ADMINISTRATION

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 3, 8 and 30 October 2013

Advocate Uriri, for applicant

S. Bhebhe, for 1st respondent

I. Ndudzo, for 2nd respondent

MTSHIYA J:   On 24 July 2013 the applicant and the 1st respondent appeared before Professor Lovemore Madhuku (the Arbitrator) and consented to the following award:-

“Award

That the respondent be and is hereby ordered to do everything reasonably required to ensure that ZINARA’s offer of employment to all “tollgate staff” which will be effective from 1 October 2013 is on terms of permanent employment.

That each party pays 50% of the arbitration fees”.

The above award was granted on 26 August 2013.

This urgent application is based on the above award. The applicant seeks the following relief:

“1.	TERMS OF THE FINAL ORDER SOUGHT

That you should show cause why an order in the following terms should not be granted;

The 1st respondent and 2nd respondent be and are hereby ordered to comply with

the award and make the applicants membership permanent employees.

An order of costs on a legal practitioner client scale.

PENDING THE DETERMINATION OF THIS MATTER THE APPLICANT IS GRANTED THE FOLLOWING RELIEF:

INTERIM RELIEF

Pending the return day, it is hereby ordered;

The 1st respondent and 2nd respondent be and are hereby ordered to restore the

status quo ante as it attained before the signing of contracts which are fixed term

and probation contracts, pending compliance with the arbitral award.

The 1st and 2nd respondent be and are hereby prohibited from recruiting any other

toll gate collectors until the compliance with the arbitral award in respect to the

sitting toll gate employees.

The 1st and 2nd respondent be and are hereby ordered to comply with the voluntary

arbitral award delivered by Professor Madhuku on the 26th of August 2013.

SERVICE OF THE PROVISIONAL ORDER

In the event of the respondent breaching any of the terms of this provisional order, the messenger of court and if need be with the assistance of any member of the Zimbabwe Republic Police, be and are hereby authorised to effect this order.”

In seeking the above relief the applicant contends that the respondents have acted contrary to the arbitral award by failing to offer permanent employment to its members. The applicant argues that since 30 September 2013 the 2nd respondent has been engaging its members on the basis of probation contracts contrary to the provisions of the arbitral award.

The application is opposed by both respondents.

The background to the dispute is well captured in the arbitrator’s narration where, in part, he states;

“Introduction

……………………………………………………………………………………………. The dispute between the parties concerns a category of employees of the respondent who are described as “tollgate staff”. In terms of SI 39/2009 made under the Toll-Roads Act [Cap 13:13], the respondent was authorised by the Minister of Transport to “levy and collect for the benefit of the Road Fund”’, tolls on vehicles using any toll-road. Tolls are payable and collected at “road-tolling points” or “ports of entry”. It appears that the appointment of respondent was always understood to be temporary pending the take-over of the responsibility/task by ZINARA.

In order to discharge the function of collecting tolls in terms of the authority granted to it by the Minister, the respondent employed several workers. It employed them on one-year fixed-term contracts which were renewable at its discretion. The employees affected (“tollgate staff”) have had their contracts renewed each time they lapsed. The claimant’s main demand is that all the “tollgate staff” be deemed permanent. Their fixed-term contracts did not provide for some key benefits enjoyed by the other employees of the respondent. The respondent opposed the claimant’s demand on the basis that renewal of the fixed-term contracts did not create permanent employment.

Agreement of the parties

After the parties had submitted voluminous documents on the issues, they appeared before me with a joint request for an award by consent. The main factor behind the agreement is that ZINARA has undertaken to enter into new contracts of employment with all the employees concerned. ZINARA communicated its undertaking in a letter dated 30 July, 2013, addressed to “The Head Human Resource Administration, ZIMRA” and signed by a P Murove, Director Administration. A copy of the letter is in the record. However, ZINARA is not a party to these proceedings. It is the respondent which is agreeing to be ordered to do everything in its power to ensure that ZINARA enters into new contracts of employment with all the concerned employees on terms of permanent employment. I therefore make the following award, with the consent of both parties:”

The parties appeared before me on 3 October 2013. I urged the parties to discuss the possibility of an amicable settlement. To that end, I postponed the matter to 8 October 2013.

On 8 October 2013 the parties advised that settlement discussions had failed and by that date, just as appears to have been the case in the arbitration process, the parties had exchanged voluminous documents on the dispute, which documents I had not read. The same applied to some of the parties as well. I then, with the consent of all parties, directed that all parties file heads of argument and I would then proceed to determine the matter on the basis of the papers. Except for the applicant, the other parties filed their heads of argument as I had directed. I never received heads of argument from the applicant.

The first and most important point to note is that the second respondent was never a party to the arbitration proceedings that the applicant is relying on and as such it is not bound by the arbitrator’s award. It has been cited herein purely on the basis that it is the new employer of the applicant’s members. The second respondent has made that position clear, which position as the facts show, is correct.

Both respondents have challenged the urgency of this matter and to a large extent I agree with their arguments.

In arguing that the matter is not urgent, both respondents pointed out that the applicant’s members have always been aware that their contracts with the first respondent would terminate on 30 September 2013. Furthermore on 25 July 2013 the applicant’s members had been reminded of the termination date of their contracts of employment. It was also pointed out that when the applicant and the first respondent consented to the award of 26 August 2013 they were fully aware of the second respondent’s position on the issue.

On 30 July 2013 the second respondent had written to the first respondent in the following terms:

“RE TOLLING STAFF TAKEOVER

Reference is made to our joint meeting held on the 16th of July 2013 at the Ministry of Transport, Communication and Infrastructural Development.

Please be advised that with effect from 01 October 2013, ZINARA will be taking over your contract employees from tolling department with the view of assessing them for permanent engagement

We now request your office to furnish us with their employee personal details for further assessment.” (my own underlining)

The narration in the award makes reference to the above letter. Clearly, as at that date, the applicant was quite aware that the first respondent would engage its members “with the view of assessing them for permanent engagement.”

In support of their argument that the matter is not urgent, both respondents cite the case of Kuvarega v Registrar General and Another 1998 (1) ZLR 188 where the court said:

“What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the dead-line draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timous action if there has been any delay. In casu, if I had formed the view that it was desirable to postpone the election I may nevertheless, have been dissuaded from granting such an order because, by the time the parties appeared before me to argue the

matter, the election was already under way. Those who are diligent will take heed. Forewarned is forearmed.”

The above sets the guiding principles in determining whether or not a matter is urgent.

I am satisfied that as at 26 August 2013 the applicant was already aware that its members would not be entitled to automatic permanent employment with the second respondent. However, it went on to consent to the arbitral award, as worded, knowing fully well that instead of automatic permanent employment, its members would first be assessed. To demonstrate that the applicant was aware of the position, on 24 September 2013, it wrote to the first respondent in the following terms:

“Zimbabwe Revenue Authority Trade Union (ZIMRATU) wishes to inform your office that ZIMRATU is the official representative of the tollgates staff in all labour issues. As such we request that you engage us in all transitional issues to do with movement of tollgate staff from ZIMRA to ZINARA.

We want to take this opportunity to inform you that it has come to our attention that tollgate staff is being asked to make fresh applications of employment by a company called Intertoll of RSA which we are not aware of since it is not cited in your letter of takeover of tollgate staff dated 30 July 2013 or the Arbitral Award of Prof L. Madhuku dated 26 August 2013, It also important to note that the award is very clear to the effect that ZINARA shall be taking over the tollgate staff and not that the tollgate staff shall be making fresh applications for employment.

Please take notice of the provisions of the Labour Act [Chapter 28; 01] which prohibits lowering of conditions of service on transfer or takeover of employees by one organisation from another. This is in light of the Application for Employment Form which is being given to tollgate staff by Intertoll RSA. Find attached the said form.

We are looking forward to a harmonious working relationship between our two organisations.

We hope you will find this is order”

I must point out that, given the narration of events in the body of the award, paragraph 2 in the above letter is misleading. Appointment was subject to assessment. The second respondent’s position was known to the parties when the award was granted i.e. on 26 August 2013. In my view, that is when the issue of urgency arose. However, I do not think it could have arisen because the applicant consented to the fact that an assessment would be made before

permanent employment was confirmed.   Indeed the second respondent has, in accordance with its conditions of employment, started offering employment to the applicant’s members.

In its answering affidavit to the second respondent’s notice of opposition, the applicant in paragraphs 10 and 11 states that:-

“10. 	…………. The matter before this Court arose when 1st Respondent started to offer less favourable contracts and also 1st respondent not acting in any way to have permanent contracts in that regard. Thus the Applicant views the assessment as an attempt to evade the Arbitral Award. Kindly refer to Annexures P1 – 20.

11.	………… The conduct of the 1st and 2nd respondent to avail offers of employment not permanent and also less favourable give rise to the urgency herein for what the other parties are doing is contrary to the arbitral award and that would be mockery to the administration of justice. Hence, this Honourable Court is implored to grant the application for clear requirements of application have been satisfied.”

The above cannot be correct because, according to the arbitral award, “ZINARA communicated its undertaking in a letter dated 30 July, 2013, addressed to The Head Human Resources Administration, ZIMRA” and signed by a P Murove, Director Administration”.  That undertaking was to the effect that “ZINARA will be taking over your contract employees from tolling department with the view of assessing them for permanent engagement”. I do not read this to mean automatic permanent engagement. Accordingly, at the time the applicant and first respondent consented to the arbitral award, they were fully aware that permanent employment

was dependent on assessment. That is, in my view, the time the issue of urgency should have arisen.

In the premises I am in agreement with the respondents that the matter before me does not meet the requirements of urgency at all. That finding is in line with the quotation from Kuvarega, supra, at p 4 herein.

The other preliminary issue raised by the respondents is the locus standi of the applicant. It was submitted that since the applicant’s members were now employees of the second respondent, the applicant could no longer purport to represent them. The applicant no longer had an interest in employees who were now under the employ of the second respondent. Furthermore, it was correctly submitted that the dispute, if any, was between first respondent and its former employees and as such the applicant could only represent them on the basis of a clear

mandate from them. There is nothing in the papers to indicate that the listed employees have given their mandate to the applicant to proceed as it has done. Indeed the Labour Act [Cap 28:01] allows trade union officials to represent their members but it is the members who bring actions against their employers.

In the main, in casu, the issue is that the applicant’s interest ceased to exist on 30 September 2013 when its members’ employment with the first respondent terminated. Those who accepted employment in second respondent cannot therefore continue to be represented by the applicant. That, in my view, is the correct position with respect to the issue of the applicants’ interest in this matter.

I therefore uphold both preliminary issues raised by the respondents.

In view of the foregoing, my finding is that the matter should be disposed of on the basis of the above preliminary issues raised by the respondents, which preliminary issues I have upheld.

Accordingly, on the basis of the preliminary issues raised by the respondents, the matter is dismissed with costs.

Messrs Matsikidze & Mucheche, applicant’s legal practitioners

Messrs Kantor & Immerman, 1st respondent’s legal practitioners

Messrs Mutamangira Attorneys, 2nd respondent’s legal practitioners.