Blue Star Logistics v Clayton Nhemachena

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/303/2016
HARARE, 27 JANUARY 2016
CASE NO. LC/H/303/2016
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/303/2016

HARARE, 27 JANUARY 2016	  		               CASE NO. LC/H/819/15

AND 13 MAY 2016

In the matter between:-

BLUE STAR LOGISTICS					Appellant

And

CLAYTON NHEMACHENA				Respondent

Before Honourable R. Manyangadze, J

For Appellant 		-	Ms N. Moyo (Legal Practitioner)

For Respondent		-	In person

MANYANGADZE, J:

This is an appeal against an arbitral award handed down on 12 August 2015, in terms of which the respondent was awarded back pay from June 2009 to August 2011 for performing duties of an artisan.

The factual background to the matter is that the respondent was employed by the appellant as a Diesel Mechanic, from August 2011.  Prior to that, from June 2009, he was employed as an Assistant Mechanic.

The respondent lodged a complaint with a Labour Officer, alleging that his salary package should have been that of an Artisan, as he performed the duties of an Artisan, and was in fact a qualified artisan from 2009 when he was engaged by the appellant.  According to the Certificate of No Settlement issued by the Labour Officer on 20 January 2015, his complaint was recorded as

“Alleged non payment of back pays”

It is that complaint, as formulated at conciliation, which was the basis of the formulation of the arbitrator’s terms of reference.  These were stated as:

“A.	Whether or not the claimant is owed back pays and if so, determine the quantum thereof.

B.	Determine the appropriate remedy.”

The arbitrator ruled in favour of the respondent, in an arbitral award framed as follows:

“The claimant performed duties of an Artisan hence the salary of an artisan should be paid.  It is also awarded that the claimant should be paid his back pay from date of engagement to the 16th of August 2011.”

Aggrieved by this award, the appellant noted an appeal with this Court.  The grounds of appeal read as follows:

“1.	The arbitrator erred at law in finding that the Respondent was employed as an artisan in 2009 when in fact the contract between the parties was that he was an assistant.

2.	The arbitrator erred at law in finding that the Respondent was employed as an artisan in 2009 when in fact he told Appellant that he had not been trade tested and so did not qualify as an artisan.

3.	The arbitrator erred in fact, which error is so gross as to amount to an error of law, in finding that the Respondent was carrying out the duties of an artisan.

4. The arbitrator erred in awarding back pay between 2009 and 2011 when that claim had prescribed.”

In the first ground of appeal, the appellant’s averment is that the contract of employment, entered into by the two parties, was that of an Assistant Mechanic.  That was the capacity in which the respondent was employed.  He signed a contract of employment in which he was employed as an Assistant Mechanic.  Although no copy of the contract of employment was availed, that fact was not in dispute.  It is common cause the respondent was engaged as an Assistant Mechanic, in June 2009, and signed a contract of employment to that effect.

In view of this, the appellant submitted that “the basis of the legal relationship between the appellant and the respondent was their contract of employment.” This contract was concluded after negotiations in which the respondent held “himself out as not having been trade tested”. As such, he could not be engaged at the level of a journeyman.

In this regard the appellant submitted, in paragraph 19.1 of its heads of argument;

“The manner in which this contract was reached involved negotiations and discussions due to the Respondent’s qualifications, in particular the fact that he held himself out as not having been trade tested.  It is incontrovertible that after all those negotiations, the parties eventually reached consensus that the Respondent was to be employed as an assistant mechanic, in keeping with the provision of the CBA that where a worker is not skilled, the parties shall agree a work position or occupation of a generic nature.  That there was such an intention is drawn from the fact that both parties signed the contract, which included that particular term.”

The appellant further averred that by application of the caveat subscriptor rule, respondent’s signing of the contractual document signified his assent to contents of the document.  The appellant made reference to R.H. Christie, The Law of Contract in South Africa, 2nd ed Butterworths, 1991, p. 202.

The appellant further contended that the respondent induced this type of contract himself, when he concealed his status as a trade tested artisan.  The appellant could not engage him as a skilled worker or artisan, when he indicated that he has not been trade tested.  Paragraph 19.4 of appellant’s heads of argument brings out this point;

“This is even more so because that contract was a result of a misrepresentation by the Respondent himself.  He misrepresented himself as being not skilled, when he was a skilled worker.  It was on the basis of his misrepresentation that he was offered a contract as an assistant mechanic.  He accepted that offer and signed a contract.  The fact that he had lied, and subsequently chose to tell the truth, cannot make the employer liable for a higher rate of pay.”

The respondent, on the other hand, averred that he disclosed that he was a qualified artisan, right from the outset.  The appellant engaged him as an Assistant Mechanic, after indicating to him that it did not have the position of a Diesel Mechanic, as they did not have the equipment requiring that kind of artisan.

The respondent further averred that shortly after his engagement as Assistant Mechanic, 3 persons were recruited as Diesel Mechanics.  The respondent alleged corruption and favouritism, alleging that these recruits were related to the appellant company’s senior officials.

The respondent contended that he had disclosed, right from the beginning, at the interview, that he was a qualified and trade tested artisan.  Notwithstanding that, he was engaged as an Assistant Mechanic.  Subsequent to his engagement, he was made to work as an Artisan.  All the duties he performed were those of an Artisan, not Assistant Mechanic.  He performed those higher duties at the salary level of an Assistant Mechanic.  That explains his claim for non-payment of wages.

In this matter, there is firstly the factual issue of whether or not the respondent disclosed that he was trade tested as a journeyman, at the time he was engaged by the appellant in 2009.

It is important to look at the arbitrator’s findings in this regard.  Paragraph 6 of the arbitral award is instructive.  The arbitrator is making a summary of what the respondent submitted to him.  It is a record of respondent’s submissions to the arbitrator.  It reads as follows:

“He submits that he was traded tested in 2011 and not in 2001.  The claim that he was employed as an assistant because there was no vacancy.  He states that two more people where hired after him as artisan mechanics and were being paid salaries of artisans.”

The arbitrator further states, in paragraph 9 of his award;

“He was engaged in that capacity after an agreement with the Respondent.  They agreed on a particular grade as he submitted that he had not yet been trade tested.  He was trade tested in 2011 and now had the right qualifications for an artisan and was duly promoted.” (Underlining added)

It is significant to note that this was the respondent’s case before the arbitrator.  It is what the respondent himself submitted.  It is consistent with the appellant’s position, which is that it was not made aware, until 2011, that the respondent was a trade tested journeyman.  In the absence of that disclosure, the appellant negotiated a contract with the respondent, in terms of which the latter was then engaged as an assistant mechanic.  He was subsequently elevated to an artisan, after disclosure of his journeyman qualification.

Given these circumstances, the appellant cannot be faulted for the manner in which it handled the respondent’s appointment.  It was consistent with the provisions of the collective bargaining agreement for the industry.   The Collective Bargaining Agreement: Engineering and Iron and Steel Industry, Statutory Instrument 282 of 1990 (CBA) provides, in section 9 (2;

“Every employer shall, for purposes of pay place each employee in a trade or   occupation and in a class of skill or grade appropriate to his trade or occupation, that is to say he shall place each employee:

(a)	who is a certified worker who has registered his certificate with the council and displayed it to the employer, in a work position consistent with the class of skilled worker qualification certificate held by that employee;

(b)	who is a skilled worker trainee, in a work position consistent with the class of skills proficiencies in the appropriate trade skills proficiencies …, in respect of which he is to be trained with a view to being certified.

(c)	who is not a skilled worker in a work position or occupation which the employer and employee agree is covered by a generic job title, … “

It is clear from these provisions, that the respondent was initially engaged in terms of paragraph (c).  He was later engaged in terms of paragraph (a), after it was disclosed that he was in fact a trade tested artisan.  Thus, as provided for in the CBA, it is the qualification that determines a worker’s classification and rate of remuneration.  It is, needless to say, disclosure of these qualifications that informs the employer on what salary grade the worker should be placed.  It is not the duties performed.

Having accepted the respondent’s submission that he did not disclose that he was trade tested until 2011, the arbitrator seriously misdirected himself by awarding the salary grade of an artisan.  The award clearly contradicted the established facts, and ran contrary to the provisions of the applicable law as set out in the provisions of the relevant CBA.  There is therefore a clear basis for interfering with the arbitral award.  Grounds 1, 2 and 3 of the appellant’s grounds of appeal must, in the circumstances, be upheld.  If these grounds are upheld, the arbitral award must be set aside, without having to proceed to ground 4.

The fourth ground of appeal is based on prescription.  The appellant captured this in paragraph 22.1 of its heads of argument, which reads:

“In terms of section 94 (1) of the Labour Act, the prescription period on a claim to a labour officer is 2 years.  Respondent made his claims to a labour officer in December 2014, well outside the two year period.  Respondent’s claims had prescribed in 2013.  The Arbitrator accordingly erred at law in making an award on a claim which had prescribed.”

There is no response on this point, from the respondent.  Even during oral argument, the respondent did not address it.  It was only after the appellant pointed out that the respondent had not addressed the issue of prescription, that the respondent turned his mind to that issue.  He had no meaningful submissions to make.  He conceded he had not raised the issue of back pays with the appellant.

His explanation was that he kept quiet for fear of victimisation.   If, according to his submissions, he sustained a spirited fight for recognition of his journeyman qualifications, one wonders why he feared victimisation in respect of back pay.  If his qualifications were recognized in July 2011, there is no reason why he kept quiet about the back pay grievance until December 2014, when he referred it to a Labour Officer.  There is no explanation why he lodged a complaint some 29 months later, about 5 months after the prescribed period.  He did not even attempt to argue that it was a continuing dispute.  He simply said he kept quiet for fear of victimisation.  It seems to me, in the circumstances, his claim also fails on the basis of prescription.

Having regard to all the facts and circumstances of this matter, the appeal has merit and must be upheld.

It is accordingly ordered that;

The appeal be and is hereby upheld.

The arbitral award granted in favour of the respondent on 2 March 2015 be and is hereby set aside.

The respondent shall bear the appellant’s costs.

Coghlan Welsh & Guest, appellant’s legal practitioners