C Thomford & 6 Others v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/684/14
HELD AT HARARE 2ND OCTOBER 2014
CASE NO
JUDGMENT
LC/H/684/14
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT LC/H/684/14

HELD AT HARARE 2ND OCTOBER 2014 	          CASE NO LC/H/782 & 786/13

& 10TH OCTOBER 2014

In the matter between:-

C THOMFORD & 6 OTHERS			Appellant

And

CITY OF HARARE					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr E.R. Samukange (Legal Practitioner)

For Respondent		Mrs R.P. Chimhenga (Legal Division)

MAXWELL, J:

Appellants are employees of the respondent in the Housing Department.  In the period between 2005 and 2010 they were all appointed to act in a higher grade, from grade 16 to grade 11.  On 12 February 2011 appellants referred to conciliation two issues, non-payment of acting allowance by the respondent and a claim for substantive appointment to the positions they were acting in.

At conciliation the parties reached a settlement in respect of the claim for non-payment of acting allowance.  The claim for substantive appointment was then referred to arbitration.  The arbitrator ruled that the appellants had not been paid their acting allowance in full.  He ordered the parties to agree on the correct amount still outstanding failing which either party is at liberty to approach the arbitrator for quantification.  The arbitrator also ruled that appellants are not entitled to the automatic upgrading to substantiate positions.

On 2 October 2013 the appellants noted an appeal against the arbitrator’s decision.  The grounds of appeal are

The arbitrator erred in failing to find out that the appellants were in the acting position exceeding the period of twelve months.

The arbitrator also erred in failing to find out that the appellants should have been confirmed substantively after a period of twelve months.

The arbitrator also erred in failing to find out that the appellants’ claim should have been calculated basing on their salary as substantives.

This appeal was filed by Messrs Hamunakwadi, Nyandoro & Nyambuya

Legal practitioners under reference LC/H/782/13.  On 3 October 2013 appellants noted another appeal under reference LC/H/786/13.  The grounds of appeal are

The arbitrator erred at law when he concluded that a Collective Bargaining Agreement; Harare Municipal Undertaking, Statutory Instrument 18 of 2007 [Chapter 28:01] (sic) does not provide for a right of an employee who has acted in higher grade for more than four (4) years by virtue of proviso of section 18 (d) (5) (d) to substantive appointment to the higher grade he has acted.

The Honourable arbitrator erred at law in failing to hold that the effect of a Statutory Collective Bargaining Agreement is that it form part of every employee’s employment contract with the employer and the employee should draw rights from such contractual agreement.

The Honourable arbitrator erred in not finding that violation of a Collective Bargaining Agreement by the employer amounts to unfair labour practice and appellants are entitled to seek specific performance that is being appointment to substantive positions they were acting in or to claim damages if specific performance cannot be an option.

This appeal was filed by Mugiya and Macharaga Law Chambers.

On 9 October 2013 the respondent noted a cross-appeal against part of

the arbitral award.  The grounds of appeal are

The arbitrator erred at law by ordering that the respondent be paid acting allowance for the Zimbabwe dollar era (January 2006 – February 2009) at the current rate.

The arbitrator erred at law by ordering that the respondents be paid an acting allowance for the period 1 February 2012 to date when the respondents’ acting appointments had been terminated with effect from 31 January 2012.

The arbitrator misdirected himself at law by ordering that the allowance for the period March 2009 to February 2012 when the respondents were paid for the period they had acted.

The arbitrator’s award is so unreasonable and outrageous in its defiance of logic to constitute a ground of appeal.

On the 17 October 2013 respondent responded to the notice of appeal

under reference LC/H/782/13.  It stated that

Ground of appeal number one is not on a point of law and should be dismissed.  In any case the arbitrator in fact made a finding that the appellants were in acting positions for more than twelve months but were not entitled to automatic upgrading.  By so doing the arbitrator did not err.

The arbitrator did not err by holding that the appellants were not entitled to substantive appointment after a period of twelve months.

The arbitrator simply adopted the quantifications by the appellants.

On 14 October 2013 the Registrar of this court wrote to the two law

firms that filed notices of appeal for the appellants requesting for the way forward.  Mugiya & Macharaga Law Chambers advised the Registrar by letter dated 21 October 2013 that the two appeals should be consolidated.  When the consolidated matter was set down appellants were now represented by Messrs Venturas and Samkange Legal Practitioners.  The first question to answer is whether Statutory Instrument 18/07 provides a right for an employee who has acted in a higher grade for more than twelve months to substantive appointment.  Appellants base their case on clause 18 (d) (5), (d) of the said Statutory Instrument which provides

“no employee who has been appointed to act in a higher position shall continue to act in such position for a continuous period exceeding six months without the position being substantively filled and any extension shall be for a maximum non-renewable period of twelve months.” (underlining for emphasis)

The arbitrator ruled that the infringement of this clause does not give

rise to automatic entitlement to upgrading.  Appellants seem to base their claim for entitlement on the fact that they have acted for more than five years and therefore have a legitimate expectation to be appointed substantively.  Appellants made reference to the case of Mudarikwa & Anor v Director Housing and Community Services N.O. & Anor SC  56/06 for the position that where there is an agreement creating an employer – employee relationship, parties derive such expectation from that agreement.  I am not persuaded that the above quoted provisions of S.I. 18/07 create a basis for legitimate expectation.  I agree with the respondent’s submission that the provision does not say the one who acts for the stipulated period is automatically qualified for substantive appointment.  The said provision merely creates an obligation on the employer to fill the post substantively.  My view is fortified by the words

“without the position being substantively filled.”

Appellants’ position is to be distinguished from a situation where the Statutory Instrument specifies that the one acting should be confirmed.  This court had occasion to consider Statutory Instrument 55 of 1992, Labour Relations (Air Transport Industry) Employment Regulations, 1992.  Section 17 (2) thereof states

“On completion of six consecutive months’ acting appointment, an employee shall be confirmed in that appointment.”

I am of the view that under S.I. 55/92 it is clear that an employer has an

obligation to appoint substantively whoever has been in an acting capacity for more than six months consecutively.  The present matter is a different scenario altogether.  The employer simply has an obligation to fill in the post substantively.  His discretion on who is to be appointed substantively is not fettered in any way.  I therefore find no fault in the arbitrator’s finding on this aspect.  The appeal by the appellants therefore has no merit.

The second question which forms the basis of the cross-appeal is whether or not the respondents (appellants in the main appeal) should be paid in United states dollars for their acting allowance for the Zimbabwe dollar era, January 2006 to February 2009.  Appellant (respondent in the main appeal) argued that litigants are not automatically entitled to compensation in foreign currency for a claim sounding in Zimbabwe dollars.  Appellant referred to case   authorities that stated that employees must be compensated at the rates applicable at the time and not at today’s rates or some future unknown rates.  Reference was made to the case of Olivine Industries (Pvt) Ltd v Caution  Wharara SC-88-05.  Respondent submitted that the question as to whether it is competent to award in United states dollars in such circumstances as prevailing in casu is now settled in our law.  Respondent referred to the case of Samanyau v Fleximail (Pvt) Ltd H-H-108-11 and Central African Batteries v Mhangu SC 79-10.

I do not find merit in the appellants’ argument.  In the case of Horace Nzuma and 2 Others  v Hunyani Paper and Packaging (Pvt) Ltd Civil Appeal No SC/37/11 the Supreme Court set aside a judgment that had ordered the respondent to pay in Zimbabwe dollars.  The arbitrator can therefore not be faulted for ordering payment in United states dollars of allowance accrued during the Zimbabwe dollar era.

Appellant raised factual issues in grounds of appeal 2 and 3.  There is no allegation that the arbitrator’s factual findings are so outrageous as to defy logic that no sensible person applying his mind to the facts would have arrived at such a conclusion.  For that reason these grounds of appeal are improperly raised.  The fourth ground of appeal has not been substantiated.  Appellant simply states that the award is so unreasonable and outrageous in its defiance  of logic.  The factual analysis made by the arbitrator justifies his conclusion.  Appellant does not state in what way the arbitrator was wrong.  Accordingly this ground of appeal also fails.  As a result, find no merit in the cross-appeal and it therefore fails.

Therefore I order as follows

The appeal be and is hereby dismissed for lack of merit.

The cross-appeal be and is hereby dismissed for lack of merit.

Each party to bear its own costs.

Venturas & Samkange,  appellants’ legal practitioners