City of Harare v Listen Muderedzi & 37 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/61/2020
HARARE, 11 NOVEMBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/61/2020

HARARE, 11 NOVEMBER 2019		           	 CASE NO. LC/H/640/14

AND 28 FEBRUARY 2020

In the matter between:-

CITY OF HARARE						Appellant

And

LISTEN MUDEREDZI & 37 ORS			Respondents

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr C. Kwaramba (Legal Practitioner)

For Respondent		Ms T. J Magaya (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the decision of Honourable Arbitrator M.C. Kare that was handed down on 20 June 2014. In the award Honourable Kare found that Appellant had committed an unfair Labour practice by intentionally failing to make substantive appointments of the Respondents in writing to the grade of 13/14 as required by law. The Appellant was then ordered to substantively appoint the Respondents to grade 13/14 from August 2012 and pay then correct salaries.

The brief facts of the matter are that,

The Respondents were employed as General Labourers by Appellant in grades 13/14.

In August 2012 the Respondent were relocated to the sewerage decision where they were given the duties of Operator (Grade 13/14).

It is alleged that Appellant did not rectify the grading system to reflect the current grade thereby leading to a dispute.

Conciliation failed and the matter was referred for arbitration and the award was issued in favour of the Respondents.

The grounds of appeal that are before this court are as follows,

The Arbitrator misdirected himself at law in ordering substantive appointment of the Respondents to a higher grade of Operator (Grade 13/14) yet

The post of Operator (Grade 15/14) does not exist on the organogram of the Appellant’s establishment.

Section 27 of the Collective Bargaining Agreement: Harare Municipal Undertaking (General Conditions of Service) Statutory Instrument 135/12 which the Arbitrator relied on does not provide for substantive appointment.

The Ministerial directive of 29th September 2010 halted any further substantive appointment and recruitments without Ministerial approval.

The Arbitrator’s award is unreasonable and irrational in its defiance of logic to constitute a ground of appeal.

In response the Respondent argued that,

Neither the parties nor the Arbitrator made reference Grade 15/14. Appellant cannot therefore argue on a point which was not placed on record.

Statutory Instrument 135/2012 Section 27 (4) (d) clearly states that an employee cannot act in a higher position for a continuous period of 3 months and any extension shall be for a maximum non-reasonable period of 6 months. The Respondents acted as Operators since 2012 and exceeded the maximum period of any acting position hence they are entitled to be appointed the substantive grade of Operator.

The Minister’s directive does not affect the Respondent because they are not seeking any recruitment but rather written confirmation of the grade for the duties they were ordered to perform and which they are still performing.

The Arbitrator’s award is reasonable and all the grounds of appeal by the Appellant are without any basis and should be dismissed with costs.

It is common cause that,

Respondents were deployed to perform duties of operators but they did not receive written appointments and they did not receive acting allowances.

The Respondents were not appointed to substantive grades of Operators.

What is to be decided is

Whether or not Respondents were suppose to be appointed to the substantive grades.

Whether or not the Respondents were supposed to be paid according to the salary scale of Operator Grade.

Whether or not Respondent were suppose to be appointed to the substantive grades

In the case of Maranatha Firechrome v Oswell Nyemba SC 28/2012 Garwe JA stated that,

“At common law, the employer has the right to unilaterally vary the terms of employment such as the duties being done by the worker, the location of work or department or to facilitate disciplinary investigations provided such variation is not substantially different from the contract job description or does not result in substantial down grading of the status and dignity of the employee or is in breach of a legitimate expectation of the employee or is not unlawfully discrimination.”

The Judge of Appeal further stated that

“It seems to me to be the correct position in our law that an employer may require an employee to carry out tasks which may be different but are closely related to the employee’s duties without incurring any obligation to pay for these duties. It is part of our law that an employee is under obligation to obey the lawful orders given by the employer – Matereke v CT Bowning & Associates (Pvt) Ltd 1987 (1) ZLR 206.

As long as those tasks are not too remote in nature from the employee’s normal duties, are carried out during normal working hours and, in the absence of a suggestion that the employee had to engage in overtime to perform those duties, the employer would not be liable.”

The Respondents in this case were employed as general hands. They were then relocated to the sewerage decision where they were given duties of Operators (Grade 13/14). It is my view that this relocation did not downgrade their status or dignity. It also does not amount to a discrimination neither does it call for a legitimate expectation. This is so because at common low the employer has the right to unilaterally vary the terms of employment. From the Maranatha case supra the appellant had no obligation to pay for the duties that they were assigned to perform. These duties were being performed during normal working hours and there was nothing abnormal about these duties.

The Appellant also argued that the position of Operator that the Respondents were said that should be appointed to do not exist in the Council Organogram at the relevant time. The Respondents on the other hand did not adduce any evidence prove that the post existed on the organogram.

The evidence that was brought before the court by the Appellant is that it had clear regulations of promotion i.e. S.I. 135/12. The regulations state that;

No employee is entitled to demand a promotion as a right. This is clearly stated in clause 2:1of S.I. 135/2012 which states that,

“no employee shall claim right or entitlement to promotion/upgrading/advancement.

It is only the executive committee of Council which promotes employees. Supervisors do not appoint fellow employees to substantive positions.

The Supervisors can only appoint in an acting position and this should be done in writing in terms of clause 18 (d) of S.I. 135/12.

When that appointment is done the employees are given an acting allowance in terms of Section 33 (1) of S.I. 135/12 and where there is no written appointment to act an employee cannot claim an acting allowance. Section 33 (1) of SI 135 of 2012 states that,

“If an employee is required to carry out the duties of a position which commands a higher salary scale … his head of department shall appoint employee in writing to act in such position.”

It further states that,

“If an employee is appointed in terms of clause18 (d) of S.I. 135/12 he shall be paid an acting allowance.”

It is also a trite principle of law that the courts should always avoid interfering with the Administration of Public Authorities. This was clearly stated in the case of Muwenga vs PTC 1997 (2) ZLR 483 that,

“There is need for court to avoid undue interference in the administration of Public Authorities. Indeed it could be contended with some persuasion that the promotion of an employee is a privilege, left to the discretion of the employer. It is not a right an employee is entitled to claim unless his contract of employment so provides.”

From the foregoing it is clear in my view that the Respondents were not entitled to any promotion despite the duties that were assigned to them because a promotion is not a right.  Failure to get a promotion was not an unfair labour practice.

They could only claim an extra-duty allowance had the appointment be made in writing by the Supervisor. The Arbitrator also misdirected himself by appointing Respondents to a grade that did not exist in the organogram of the organisation.

To add to this there is a Ministerial Directive dated 29 September 2010 which had stopped further substantive appointments and recruitment without Ministerial approval. This government directive was suppose to be followed.  This principle was stated in the case of Vancouver Consolidated Investments (Pvt) Ltd v Ministry of Education 2008 (1) BLR 270 by JA Ramodibedi as follows,

“It follows from what is stated in the preceding paragraph that the Directive in the present matter was a government instruction as communicated by the Ministry of Works and Transport. It was a statement of government policy regarding the use of locally manufactured building and construction products. It emanated from the executive arm of government. That government in turn has inherent constitutional right to formulate and reformulate policy is undoubted. See for example Hughes vs Department of Health and Social |Security (1985) AC 776 HC at pg 788.

It is the duty of the courts to recognise the importance of this principle. Matters of police stricto sensor are exclusively within the purview of the executive arm of government and not the courts.”

In the circumstances I find that the appeal is merited and I order as follows,

The appeal be and is hereby allowed.

The Arbitral award made on the 20th June 2014 be and is hereby set aside and substituted with the following,

“The Respondents are not entitled to a substantive appointment.”

The Respondents shall bear costs.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners

Magaya Mandizvidza, respondents’ legal practitioners