Alex Masiaya N.O v City of Harare & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.
LC/H/267/2020
HARARE, 25 OCTOBER, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/267/2020

HARARE, 25 OCTOBER, 2020		    	     CASE NO. LC/H/LRA/355/19

AND 20 NOVEMBER, 2020

In the matter between:

ALEX MASIYA N.O						Applicant

CITY OF HARARE							1st Respondent

CHIRADZA MUGOVE						2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant:			In Person (DA NEC Harare Municipal undertaking)

For 1st Respondent:			Mr A. Moyo (Chamber Law Group)

For 2nd Respondent			Mr C. Mugove

HOVE J:

This is an application for confirmation of a ruling made by the applicant in the matter between the 1st and the 2nd respondents and which ruling was made on the 27th August 2019.

Background

The 1st respondent employs the 2nd respondent as a loss control officer in charge of council farms. His duties include the supervision of council farm guards on 3 council farms.

On May 22, 2012 the 1st respondent through a memorandum, requested him to use his personal vehicle to carry out security supervision duties and in return he was authorized to receive 20 litres of fuel per week, $200 per month as locomotion allowance in terms of Statutory Instrument 135/2012. He was further entitled to receive 20% of basic salary per month, plain clothes allowance since he was not using security uniforms.

In January 2014 the 1st respondent unilaterally stopped the payment of the allowances and also the allocation of fuel.

The 2nd respondent’s grade does not entitle him to the allowances but it was considered necessary to avail to him the allowances in view of the overwhelming work that he was required to do.

The 1st respondent then ceased the payment of transport allowance since he was now receiving fuel and locomotion allowance.

When the allowances were ceased in January 2014, the 1st respondent alleged that the 2nd respondent was verbally advised.

The issues

The issue that arise from the facts is whether or not the claimant is entitled to locomotion plain clothes, transport allowance and fuel allowance. Another issue that was raised by the 1st respondent is whether or not the claims by the 2nd respondent had prescribed.

Prescription

The 1st respondent submitted that the allowances were last pain in January 2014. The claimant did not raise the issue with the respondent until December 2018, more than 4 years after the dispute first arose.

The law provides in section 94 of the Labour Act [Chapter 28:01] (the Act) that;

94(i) Subject to subsection 2, no Labour officer shall entertain a dispute or unfair Labour practice unless-

(a) it is referred to him; or

(b) has come to his attention;

within 2 years from the date when the dispute or unfair Labour practice first arose.

Subsection 3 provides as follows;

“for purposes of Subsection (1), a dispute or unfair Labour Practice shall be deemed to have first arisen on the date when-

(a) the acts or omissions forming the subject of the dispute or unfair

Labour practice first occurred; or

(b) the party wishing to refer the dispute or unfair Labour practice to the

Labour officer first became aware of the acts or omissions referred to

in subsection (a), if such party cannot reasonably be expected to have

known of such acts or omissions at the date when they first occurred”.

It was therefore argued that the claim had prescribed in view of the above provisions of section 94(1) and (3) of the Act. The Court was urged to dismiss the claim on that basis.

The 2nd respondent argued that the question of prescription does not arise in the circumstances of this matter. It was argued that this was so because for a party to claim prescription, the claimant’s cause of action must complete. There must be an obligation to perform or to refrain from something immediately. This is not the case in casu where the obligation to pay is continuous in nature. Reliance for this position was placed on the cases of;

Deloitte t/a Skins and Sells consultants (Pvt) Ltd 1991 (1) SA 525(A) and

Dangwe No vs Slatter – Kinghorn No and another case No. 16773/08 a decision of Kwazulu Natal High Court where the court reiterated that Extinctive prescription does not arise in a debt of a continuous nature.

The law in our jurisdiction governing prescription in Labour disputes also recognises that the prescriptive period of 2 years will not apply to unfair Labour practices which are continuous in nature. Section 94 (2) provides that:

“94(2) Subsection (1) shall not apply to an unfair Labour practice which is continuing at the time it is referred to or comes to the attention of a Labour officer”.

The obligation to pay either the transport allowance or the fuel allowance and other allowances is of a continuous nature. The provisions of section 94(1) are therefore not applicable. The unfair Labour practice of not paying is continuous. In the case of Barnett and others v Minister of Land Affairs and others 2007 (6) 33 (SCA) the concept of prescription as it relates to violation of a continuous nature was explained thus;

“In accordance with this concept, a distinction is drawn between a single completed wrongful act with or without continuing injurious effect such as a blow against the head on the one hand and a continuous wrong in the course of being committed on the other. While the former gives rise to a single debt, the approach with regard to a continuous wrong is essentially that it results in a series arising from moment to moment as long as the wrongful conduct endures”.

I agree with the submission that in casu, the commencing date of the first of a series of payments became due and payable on 28 February 2014 and the wrong is continuous in nature. The wrong is still being committed and cannot be said to have been extinguished.

The point in limine is therefore without merit and must fail.

Merits

The facts are common cause that the 2nd respondent’s grade did not entitle him to the use of his personal vehicle and hence an entitlement to the fuel allowance and the locomotion allowance. The 2nd respondent, being in grade a, was not entitled to these allowances. The 1st respondent however, in the exercise of its discretion, granted council authority to the 2nd respondent. It was considered necessary to authorize the 2nd respondent to use his own vehicle for councils business since council vehicles were not available but it was necessary to use a vehicle for the performance of his duties.

The 1st respondent submitted that this was a temporary arrangement where the 2nd respondent was authorized to use his personal vehicle to execute council business and the employer provided fuel and paid him locomotion allowance as this was meant to enhance his effectiveness in the discharge of his loss control duties. It was noted that the 2nd respondent was overwhelmed with security issues at the farms.

The 1st respondent submitted that Harare Municipal Police officers were later deployed to the farms to beef up the security. This, it was submitted, reduced the pressure on the 2nd respondent who needed not patrol the farms anymore. The 1st respondent then stated that this new arrangement rendered the use of a personal vehicle by the 2nd respondent unnecessary and consequently, the fuel and locomotion allowance was withdrawn. It was submitted on page 38 of the record that the 2nd respondent was aware of these developments.

The 2nd respondent denies that the authority to use his personal vehicle was a temporary arrangement. He was never advised that the use of his personal vehicle would at sometime cease. His duties remained the same as he had to still supervise the guards at council farms. He argues that he was given 20 litres per week and the 20 litres per week was specifically for checking guarded sites.

The second respondent also denied that any Harare Municipal Police Officers were deployed to the farms and he said this is confirmed by the letter from the Chief Security Officer of Harare Municipal Police.

The director of Harare water’s letter dated 13 September 2018 supports the 2nd respondent’s version that the allowances were just unilaterally stopped and he was not advised. If the position was that there were now Harare Municipal police details guarding the farms, the Director of water would have known and not write to the Human capital Director urging them to attend to the payment of the allowances. He would surely have known that the allowances were stopped since he was nolonger required to do guard duties. The waste water manager also did not appear to know that a decision to withdraw the allowances had been made.

The 1st respondent gave the 2nd respondent authority to use his personal vehicle and the authority was not withdrawn neither was he advised that the 1st respondent had decided to withdraw the fuel and locomotion allowance. 2nd respondent submitted further he was not being paid the transport allowance which he is entitled to in terms of his contract of employment since the 1st respondent had authorized the payment of the locomotion and fuel allowances. He further submitted that he is still carrying out the duties that the 1st respondent had authorized him to carry out with his personal vehicle. He denied that there were municipal police details deployed in the farms and he is still required to conduct his duties in the farms.

The 1st respondent argued that the 2nd respondent is a loss control officer, grade 9 who is not contractually entitled to the fuel and locomotion allowances. The use of personal vehicle and allocation of fuel for both business and private use is a condition of service applicable to the employees in Grade 6 and these are also entitled to receive locomotion and fuel allowances. The 1st respondent however admitted authorizing the 2nd respondent to use his personal vehicle and to receive the allowances. They argue however that the need to use his personal vehicle was removed when municipal police officers were deployed to the farms. The council then withdrew the allowances. It was argued that the authority to use his personal vehicle and to receive fuel and locomotion allowance was temporary.

The record however does not show that the 2nd respondent was ever told that the allowances were temporary. The authority given to him did not state this. Even if the 1st respondent had not stated that the arrangement was only temporary, it could still withdraw the benefit if the need fell away. The evidence on record however does not support that the need fell away. The applicant is still required to supervise and inspect the council farms. But most importantly, the authority given by the 1st respondent was never withdrawn. The 2nd respondent continued to use his personal vehicle for council duties He was never informed verbally or otherwise that the authority had been withdrawn. No evidence was called to prove that the 2nd respondent had advised that the employer had withdrawn the authority and the allowances. The record also shows that there was never evidence to prove the disputed averment that Harare Metropolitan Police were ever deployed to the farms. The probabilities favour a finding that there never was a deployment of the Harare Metropolitan Police. The Court believes the 2nd respondent’s version of facts. The 1st respondent merely seized paying the allowances for no lawful reason. It acted unilaterally and contrary to the agreement between the parties.

There is also no evidence on record that the 1st respondent was ever transferred to the investigation section of the loss control division from the farms section. The 20% of the basic salary was never authorized because of a transfer. It appears that the 1st respondent unilaterally varied the agreed position between the parties and for no lawful reasons, stopped the plain clothes allowance.

In the case of Taylor v Minister of Higher Education and another 1996 (2) ZLR 772 the court stated that;

“some substantive benefit or ad advantage or privilege which the person would reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or prior hearing and at other times in terms of a legitimate expectation to be accorded a hearing before some decision adverse to the interests of the person concerned is taken”.

There was a legitimate expectation in casu on the part of the 2nd respondent. He had been authorized to his personal vehicle and that authority had not been withdrawn. The 2nd respondent was never advised that the plain clothes allowances were being withdrawn. All that the 1st respondent needed to do was to advise the 2nd respondent that for these reasons, it was withdrawing the allowances but it never did. It merely stopped meeting its obligation to pay, thereby breaching the agreement between itself and the 2nd respondent. The case of Taylor above is authority to the effect that the employer cannot unilaterally withdraw benefits without consulting the affected employee and without even advising the employee that the benefits are being withdrawn.

The 1st respondent argues that the position of law is that the law does not protect every expectation but only those which are legitimate. Reliance for this proposition was placed on the case of Director of Public prosecutions v Phillips and others 2002 (4) SA 60. Indeed this is the position of law, the expectation must be legitimate. It is however difficult to think of a more legitimate expectation than the 2nd respondent’s expectation of receiving these allowances in this case. To start with, all the requirements were met;

(i)	The representation underlying the expectation must be clear, unambiguous and devoid of relevant qualifications.

-The representation underlying the expectation is an official written authority that he was authorized to use his personal vehicle and further that he would receive the allowances. The authority is clear and unambiguous and devoid of qualifications.

(ii)	The expectation must be reasonable.

In casu it is a reasonable expectation to expect to receive an allowance for the continued use of one’s personal car for official business especially where your employer has authorized such use and extended the benefits to you.

(iii)	The representation must be induced by the decision maker.

The record in casu shows that the decision to pay the allowances was made by decision makers and communicated to the 2nd respondent who then received the allowances until they were unlawfully ceased.

(iv)	The representation must be one which it was competent and unlawful for the decision maker to make without which reliance cannot be legitimate.

It was never pleaded that the decision maker acted unlawfully or that he was not competent to authorize the allowances. The evidence on record shows that the decisions were made by competent persons and they acted lawfully. Infact the record shows that the 1st respondent can for good reasons authorize a person who is not entitled to these allowances to receive them to enable him to perform his duties.

The requirements for the legitimacy of the expectation were satisfied. There was no evidence that the 2nd respondent was verbally advised. This was disputed and no evidence was placed before the court to prove this.

The 1st respondent also argued that it was unreasonable for the 2nd respondent to continue using his personal car for official business after the employer had stopped paying the allowances. The 1st respondent argued that the 2nd respondent’s inaction and silence clearly shows that he had accepted that the allowances had been stopped.

The facts on the record do not show that the 2nd respondent was silent. He continued to try and get the employer to pay him the agreed allowances and the director of water also urged the 1st respondent to pay. Further the 1st respondent was not always meeting its obligations on time. Payments would be late and later made so it was quite reasonable to think that the employer was out of pocket but would pay as soon as funds allow as it sometimes did. Estoppel can therefore not be read into the 2nd respondent’s actions. The circumstances of this case are such that the 2nd respondent did not waive his entitlements. He is thus entitled to the allowances.

The 2nd respondent also claimed transport allowance in terms of his conditions of service, transport allowance is paid to persons in grades that do not receive the fuel allowance and the use of council or personal vehicles. The 2nd respondent fell in these grades. But the council had authorized that he be entitled to those benefits enjoyed by persons in grades higher than his. It is clear that the benefits are either or. Therefore one cannot have both. It would be unjust enrichment. In view of the agreement between the parties, the 2nd respondent was entitled to those benefits of persons using their personal vehicles for official duties and not to transport allowance. The 2nd respondent’s claim for transport allowance is unjustifiable and must fail in view of the fact that the parties had agreed on fuel and the other allowances.

In the result the following order is made:

Order

1.	The application for confirmation of a draft ruling is hereby granted in the following terms;

(a)	The 1st respondent shall pay the 2nd respondent locomotion allowance in

the sum of $13 400.

(b)	The 1st respondent shall pay the 2nd respondent plain clothes allowances in the sum of $12 060.

(c)	The 1st respondent shall pay the 2nd respondent 5860 litres of fuel.

(2)	The 1st respondent shall bear the applicant’s costs.

J. Mambara & Parners 	-	2nd Respondent’s legal practitioners