City of Harare v Margaret Mukonza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/279/16
HELD AT HARARE 22 MARCH 2016
CASE NO
JUDGMENT NO LC/H/279/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/279/16

HELD AT HARARE 22 MARCH 2016				CASE NO LC/H/901/13

& 6 MAY 2016

In the matter between:

CITY OF HARARE					Appellant

And

MARGARET MUKONZA					Respondent

Before The Honourable P Muzofa, Judge

For Appellant			A Zvoutete (Principal Legal Officer)

For Respondent		S M Chikotora (Legal Practitioner)

MUZOFA, J:

The respondent is employed by the appellant as a general worker.  Respondent raised grievances that she should have been promoted to a public convenience cleaner, that she had not been paid acting allowances when she acted as a public convenience cleaner and that she was entitled to a noxious substance allowance.

The grievances could not be resolved internally and subsequently the matter was referred to an arbitrator.

The arbitrator made a finding in favour of the respondent.

The facts of the case are not agreed.  There is a dispute when the respondent was engaged.  Respondent’s representative conceded during the proceedings before the court that the respondent was engaged in January 1994 as a contract worker.  The contracts were continuously renewed until 14 October 1996 when she was engaged as a permanent worker.

Respondent was employed as a general worker.  According to respondent she was transferred to undertake duties of a higher grade at City Sports Centre in 1999 until 2007.  In 2000 appellant advised her that she was entitled to a noxious waster allowance.  She was not paid the acting allowance neither was she paid the noxious waste allowance.  She also said that a council resolution was made that people who worked in an acting capacity for a long time were supposed to be appointed to the substantive positions.  She was not so appointed.  She claimed appellant should have appointed her so.

Appellant’s version was different. According to appellant the respondent was appointed as a permanent general worker in October 1996.  The respondent was only appointed to work in an acting capacity as a public convenience cleaner from January to June 2010 and then August 2010 to January 2011.  The respondent could not be appointed to the substantive position of a public convenience cleaner since a ministerial directive from the Ministry of Local Government froze all posts there were no appointments that could be made.

Further it was submitted that the respondent was not entitled to a noxious waste allowance.

The appellant raised six grounds of appeal which impugn the factual findings of the arbitrator.  It was alleged the arbitrator grossly erred in making those findings.

The appellant alleged that the arbitrator erred in making the following findings:

That the date of respondent’s engagement as a permanent employee was January 1994

That the duties of a public convenience cleaner exposed respondent to unhealthy conditions therefore she was entitled to a noxious waste allowance

That respondent was entitled to an acting allowance for the period claimed yet she had acted and paid for the six months

That parties should compute the acting allowance due to respondent

That the respondent should be appointed to the substantive position of a public convenience cleaner in the event that the ministerial directive of 29 September 2010 lapsed

That the arbitral award was grossly unreasonable.

It is a trite principle of law that an appeal court can only interfere with the decision

of a lower tribunal on the facts where it is shown that in view of the facts before it the decision defies logic.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 SC.

The first ground of appeal is whether the arbitrator erred in determining that respondent was engaged in January 1994.  I find no misdirection in that finding.

The payslips produced for 1994 were not disputed by the appellant.  The arbitrator made a finding that “January 1994 be taken and regarded as the date of claimant’s commencement of duty.”

That is the correct position except to say respondent was engaged as a contract worker from January 1994 and became a permanent worker in October 1996.

The appellant’s ground of appeal is premised on an incorrect reading of the award.  The arbitrator did not make a finding that January 1994 was the date respondent was engaged as a permanent employee.

Respondent also conceded that January 1994 was the date of appointment as a contract worker and October 1996 was the appointment as a permanent worker.

The first ground of appeal is dismissed.

The second ground of appeal is that the respondent was not entitled to a noxious waste allowance for the period she acted as a public convenience cleaner.

The appellant referred to clause 31 of the Collective Bargaining Agreement:  Harare Municipal Undertaking (S.I. 18/07) which provides

“Noxious waste allowance – allowance paid to employees who came into contact with noxious substances or situations as they perform their Harare Municipality duties.”

The court also received evidence from a Mr Manyere a staff officer in the Community and housing department of the respondent.  His evidence was that as an organisation and as a practice the noxious substance allowance was paid to employees who were exposed to noxious gases like sulphuric acid, hydrogen chlorine.  These included workers working in the sewage environment and fire-fighters.  Those who worked in unventilated environments.

According to Mr Manyere public convenience cleaners were not entitled to the noxious substances allowance since they work in ventilated environments where there is free flow of oxygen and do not come into contact with noxious waste.

Respondent argued that she was in contact with human waste and this was noxious.  She produced a payslip of one Ziyambi claiming she was a public convenience cleaner and received such a payment.  However the payslip showed that she was paid a hostel cleaning allowance only.  It is also common cause that the issue whether public convenience cleaners should be paid the allowance was being debated between appellant and the workers’ representatives as evidenced on page 18 of the record.

The issue for determination therefore remains whether a public convenience cleaner has contact with noxious substances in the execution of their duties.  The arbitrator just made a finding that respondent was exposed to unhealthy working conditions.

In my view there was no evidence whether the working conditions exposed the respondent to noxious substances.  Evidence from appellant showed that only those working in restricted environments exposed to gases were entitled to the allowance.

Clearly further evidence was required to show whether the alleged quantities of human waste in public toilets can be categorised as noxious substances.  The arbitrator made a finding on no evidence and thus falling into error.

I believe the issue whether public convenience cleaners be paid the allowance should be properly determined by appellant in consultation with the worker’s representatives in view of proper scientific evidence.

The ground of appeal has merit and is therefore upheld.  The respondent is not entitled to the noxious waste allowance.

The third ground of appeal is whether respondent was entitled to an acting allowance for the period claimed.

Before the arbitrator the respondent set out that between August 1999 to January 2007 at City Sports she worked in an acting capacity as a caretaker, public convenience cleaner, facilities and events clerk and a booking officer.

From February 2007 to February 2008 she was at Mai Musodzi Hall and worked in the capacity of a facilities and events clerk.

From March 2008 to December 2009 at Mai Musodzi Hall she worked as a public convenience cleaner.

Then from February 2013 to date (as at of date of claim) she was at Lusaka centre working as a caretaker.

Appellant denied all these assertions by the respondent.  It was submitted that all appointments for acting positions are officially made by letter from the head of department.  Appellant conceded that respondent only acted as a public convenience cleaner from January 2010 to June 2010and from August 2010 to January 2011.  She was paid her allowances.

Appellant produced proof of payments for the period January 2010 and undertook to produce the proof for August to January 2011.  This was not produced.  On that basis and the concession made by appellant that respondent worked in an acting capacity.  I will grant the claim for the period August 2010 to January 2011.

It is a basic principle of law that he who alleges must prove.  At p 248 of Butler and Finsen, Arbitration in South Africa Law and Practice the authors note

“The general rule in legal proceedings is that he who alleges must prove.  The claimant in civil proceedings must prove his claim in accordance with the standard of proof and if he fails to do so, his claim must fail.”

To that extent the respondent had the onus to prove on a balance of probabilities that she worked in acting capacities as claimed.  The arbitrator accepted documentary evidence for her acting in 2010.  For the rest of the claims the arbitrator noted respondent was transferred “by word of mouth.”

This was an improper acceptance of non existance evidence.  This was respondent’s claim which was denied.  It was up to the respondent as the claimant then to prove that she was appointed to act in those capacities by word of mouth.

I did not see a portion where the arbitrator received such evidence.  He just believed the respondent’s claim.

In my view the respondent’s claim was really based on the duties of a general worker.  What were they.  According to a document filed of record though denied by appellant, the duties included toilet cleaning among other duties.

This explains why in August 1999 to January 2007 respondent claimed she worked as a caretaker, public convenience cleaner, facilities and events clerk and booking officer.  Clearly she was doing a lot work but it cannot be said it was full time.

Some snippets of documents filed of record show this.  Page 16 of the record transferring respondent from City Sports Centre to Mai Musodzi Hall actually advise her to handover all resources to the facilities and events clerk.  In my view there was a substantive person in that position yet she claimed she acted in that position during the said period.

The evidence from one Manyere the staff officer before this court showed that a general worker’s duties were to clean offices, toilets and maintenance of the environment then other assigned duties.

In my view respondent failed to prove that she was appointed to work in an acting capacity for the period claimed.

There was no evidence before the arbitrator therefore the finding was erroneous.

The fourth ground of appeal is whether the arbitrator erred by ordering the parties to engage to establish the period that respondent worked in an acting capacity.

According to appellant there was a clear document which set out six months as the acting period.  The appellant relied on one document yet a second document on page 19 appointing respondent to act in the position of a public convenience cleaner was not considered.

The arbitrator’s findings were consequential to the findings made on whether the respondent had worked in the capacities claimed.

In view of my finding that the claim was not proved this order by the arbitrator should be set aside.  The ground of appeal succeeds.

The fifth ground of appeal raise the issue whether the respondent should have been appointed a substantive public convenience cleaner.

It is not in dispute that the Human Resources and General Purposes Committee resolved on 26 January 2010 that

“Council employees who have acted in vacant higher positions for long periods be appointed onto (sic) such positions on substantive basis.”

It is also not in dispute that a ministerial directive effectively barred appellant from making new appointments for a certain period.

If indeed appellant had resolved to appoint employees to substantive positions it should be held accountable.

According to appellant, respondent only acted for six months, however the court’s finding is that she acted for twelve months.  Appellant referred to section 18 (d) (5) (d) of Statutory Instrument 18 of 2007 which defines the maximum period a person can work in an acting capacity.  The maximum period is twelve months.

On a balance respondent indeed worked in an acting capacity to the maximum period, in terms of what was proved.  She must have been considered as having acted for a long period.  I find no error in the arbitrator’s findings.

The last ground of appeal is more of a general statement which I presume were substantiated in the preceding grounds of appeal.   It needs no consideration.

From the foregoing the appeal partially succeeds accordingly the following order is made

The appeal succeeds, the arbitral award be and is hereby set aside.

The arbitral award is substituted by the following:

“a.	The respondent was engaged from January 1994 as a contract worker and subsequently appointed in October 1996 as a permanent worker.

b)	That the respondent is not entitled to a noxious waste allowance.

c)	That the respondent be paid acting allowance as a public convenience cleaner for the period August 2010 to January 2011.

d)	That respondent is entitled to be appointed to the post of substantive public convenience cleaner as and when the ministerial directive expires.”

3.	No order as to costs.

Rubaya & Chatambudza Legal Practitioners, respondent’s legal practitioners