City of Harare v A Mutubuki & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/776/16
HELD AT HARARE 14 SEPTEMBER 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/776/16

HELD AT HARARE 14 SEPTEMBER 2016		CASE NO LC/H/181/16

& 2 DECEMBER 2016

In the matter between:

CITY OF HARARE				Appellant

And

A MUTUBUKI & OTHERS			Respondents

Before The Honourable Kudya, J

For Appellant		C Kwaramba (Legal Practitioner)

For Respondents		E Donzvambeva (Legal Practitioner)

KUDYA J:

This is an appeal against the decision of the arbitrator who ruled that the appellant employer was committing an unfair labour practice by making respondent employees act in grades higher than their real grades but not pay them an acting allowance or at least elevate them to the said higher grades.

The brief facts of the matter were that the respondent employees went for conciliation and ended up at arbitration on the subject matter described above.  At arbitration, the arbitrator ruled that indeed the employer was committing an unfair labour practice to that end. He thus ordered that the unfair labour practice be ceased and that the employees be paid their acting allowances for the period they acted in grade 9 if the employer was unwilling to appoint the employees to grade 9 on a substantive basis.  The employer was irked by this award and that prompted it to appeal to the Labour Court which appeal is the subject of this judgment.

The appeal grounds are set out as follows:

Arbitrator erred at law to find that appellant committed an unfair labour practice by failing to pay respondents an acting allowance yet by finding as such he failed to apply his mind to Section 8 of the Labour Act.

Arbitrator erred at law when he ordered appellant to pay respondents acting allowance for grade 9 or to appoint them into that grade yet they were never appointed to such grade and were not entitled to such appointments or allowance.

Arbitrator’s award was so unreasonable in its defiance of logic so as to constitute an appeal ground in that he mistook the facts and the law by finding as he did that appellant perpetrated an unfair labour practice yet acting appointment is not on the list of unfair labour practices.  He also erred by ordering payment of an acting allowance as an alternate to substantive appointment yet the 2 cannot operate as alternatives and the respondents are not entitled to either.

In the result the appellant prayed that the appeal be allowed and that the arbitral

award be set aside and substituted with an order that the appellant did not commit any unfair labour practice against the respondents and that the respondents are not entitled to an acting allowance or substantive appointment to grade 9.  It also prayed that each party be made to bear its own costs.  In response to the appeal the respondents maintained that:

Appellant is raising factual issues against an arbitral award and that is contrary to the spirit of Section 98 (10) of the Labour Act which stipulates that appeals against arbitral decisions can only be on a question of law.  To that extent there is no proper appeal before the court.

The findings of fact and law made by the arbitrator are unassailable.  In the result the respondents prayed that the appeal be dismissed with costs on a legal practitioner basis.

Before delving into the merits of the appeal it is pertinent that the court disposes

of the points in limine which beset the appeal.  To start off with there was argument that the appeal was not properly before the court since it had not been lodged by a legal practitioner as defined by the Legal Practitioners Act.  A similar argument had been raised in a related case and this court had ruled that such argument was ill founded.

The parties took guidance from that decision and decided to abandon the said point since it had already been settled.  What it therefore effectively meant was that the appeal was properly before the court when taken in the context of the Legal Practitioner argument.  The 2nd point which was taken was that the appeal was improperly before the court as it raised issues of fact and not law.  After the parties made submissions on that point the court ruled that the point was ill placed and stated that reasons for such a decision would follow the main judgment.  These are the reasons;

The law is settled as to what is a point of law and what is a point of fact (See Matsuta…. Katsande v Cargar (Pvt) Ltd SC-47-09).

It is clear from the definition that where a gross misdirection on the facts is alleged that can be elevated to a point of law.  See Hama v NRZ.  Applying the legal principles in the cases quoted above it is worth noting that the appellant attached the arbitrator’s findings on a strict legal basis that is as far as his construction of the issue of appointments and allowances for acting in a higher grade are concerned.  To the extent of his interpretation that founded a point of law.  On the factual plane the allegation that his factual findings flew in the face of evidence in a gross manner also sufficed to found the point of fact that can be elevated to a point.  It is for the above reasoning that the court dismissed the point in limine that the case at hand does not raise points of law as envisaged by Section 98 (10) Labour Act.  Turning now to the merits of the case each of the grounds is addressed in turn:

Ground 1

Section (8) of the Labour Act singles out all the conduct classified as unfair labour practices.  Failure to pay an acting allowance or to promote a person who has acted in a position higher than his own is certainly not listed as such.  The court is therefore persuaded by the appellant’s argument that the arbitrator’s interpretation was to that extent flawed and the award needs to vacated on account of this ground.

Ground 2

The facts which were presented at arbitration as is apparent from the record show clearly that nowhere in the record was it established that respondents acted in grade 9.  As stated clearly in appellant’s heads evidence on record points to acting in grades other than grade 9.

Besides, as indicated by the cases cited by appellant where the same issue arose in other cases, it is clear that the appointment process was governed by certain stipulates within the industry concerned.  It was not an automatic action.  For the arbitrator to then rule against all that evidence fortified the fact that his award was a serious error at law.  It should therefore be vacated on account of this ground.

Ground 3

This ground is a mere re-statement of grounds one and 2.   Sentiments already expressed in 1 and 2 above apply to this ground with equal force.  These sentiments deserve no repetition.  In the ultimate it is clear that all the appeal grounds are merited. The appeal should therefore succeed in its entirety.

IT IS ORDERED THAT

Appeal being merited in its entirety it be and is hereby allowed.

Each party to bear own costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Wintertons , respondents’ legal practitioners