City of Masvingo v Ruzengwe J. Mutiza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/24/2016
HARARE, 15 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/24/2016

HARARE, 15 MARCH 2016			     	    CASE NO. LC/MS/56/15

AND 13 MAY 2016

In the matter between:-

CITY OF MASVINGO				 			Appellant

And

RUZENGWE J. MUTIZA							Respondent

Before Honourable L. Hove, Judge

For Appellant	T.H. Tavengahama (ZUCWU)

For Respondent	Ms G. Bwanya (Legal Practitioner)

HOVE, J:

This is an appeal against an arbitral award.

The award was handed down by arbitrator Mupangani on 8 May 2015.

The appellant noted an appeal against that arbitral award in case number LC/MS/56/15.  The respondent (City of Masvingo) also noted a cross appeal against the same arbitral award in case number LC/MS/54/15.

The parties agreed that the two appeals, i.e. the appeal and the cross appeal be consolidated and argued as one matter.

For purposes of this judgment, the employee shall be referred to as the appellant and the respondent shall be City of Masvingo.

The History and background of the matter is important as it will help in the understanding of the issues.  It is briefly outlined below;

The appellant was initially employed by the respondent as a beer hall Supervisor in grade 10.  He was then appointed to act as a Liquor Undertaking Manager with effect from July 2011.  He remained in that acting capacity from July 2011.  He remained in that acting capacity from July 2011 to December, 2014.

In December 2014, City of Masvingo made redundant their liquor undertaking outlets.  The City of Masvingo stated that the appellant would revert back to his grade 10 positions but since the liquor outlets were closed, he would be engaged as a revenue clerk which was a grade 10 position.

The appellant was aggrieved because he had been acting in a grade 14 position as a liquor undertaking manager.  The dispute was referred for arbitration and the arbitrator ruled that the appellant be reinstated into a grade 14 position without loss of salary or benefits.

The appellant was reinstated to a grade 14 position.  The parties then approached the arbitrator for quantification of the back pay due to the appellant who had been made a substantive grade 14 employee by virtue of the arbitral award.

The arbitrator dismissed appellant’s claim for damages in lieu of reinstatement after finding that there was no basis for that as the appellant had been reinstated.  The arbitrator then awarded the sum of $15 944,90 as back pay.

After the appellant had been reinstated on 6 August 2015 City of Masvingo terminated his contract on 3 months’ notice.

The appellant approached the Ministry of Labour arguing that he had been unfairly dismissed in relation to the dismissal on three months’ notice.  That matter (Dismissal on three months’ notice) was found to have been unfair by the Labour Officer in an arbitral award on 17 February 2016.  He awarded damages in line with the provisions of the Labour Act amendment i.e. Act number 5/15.

Against this background, the City of Masvingo raised a preliminary issue that ground number 5 of the appellant’s appeal before the court be struck out on the basis that this issue has been decided by the Labour Officer on 17 February 2016 and its now res judicata.  The arbitrator was seized with the matter of damages in lieu of reinstatement.  The appellant sought before the Labour Officer damages for unlawful dismissal. The issue before the Labour Officer was the issue of failing to reinstate and damages there from.

Ground number 5 of this appeal seeks to again establish a claim for damages in lieu of reinstatement.

There is therefore a duplication of the same claim before two different forums.  When this was discussed, the appellant agreed to withdraw ground number five of his appeal grounds.  That left 4 grounds of appeal against the first arbitral award.

These are

That the honourable arbitrator failed to interpret the provisions of section 2, 74 (h) and 8 (e) of the Labour Act Section 131 of the Urban Councils Act Chapter 29:15 as read together with Masvingo City Council conditions of work concerning airtime.

The arbitrator failed to interpret the provisions of the Masvingo City Council Collective Bargaining Agreement on professional allowances.

The arbitrator failed to interpret the past practice conditions of employment on entertainment allowances.

The arbitrator failed to interpret the past practice conditions of employment on vehicle allowances.

The cross appeal by the respondent raised two grounds of appeal these are briefly that

The arbitrator erred grossly on the facts when he failed to deduct from the respondents back pay general overtime and responsibility allowance after he had made a finding that these benefits were not paid to a liquor undertaking manager.

The arbitrator erred grossly by failing to find that the responsibility allowance and general allowance only accrued from July 2011 and no back pay was due in these two categories.

The court will consider all the six grounds of appeal raised in both the main appeal and the counter appeal.

Whether or not arbitrator was right in not granting the claim for overtime

Ground of appeal number 1 and 5 (a)

It is argued that the arbitrator was wrong in this regard and his misdirection was gross in view of the evidence before him.  The basis for this claim is that

The parties agreed in a collective bargaining agreement that

Every employee shall be paid any overtime worked and

Managerial employees shall not claim overtime.

The same code of conduct defines who a manager is in section 3.13 which reads;

“3.13

Management means the management of the council from grade of deputy head of department and above and

3.14

“Managerial employee means an employee from the grade of deputy head and above.”

The appellant argued that he was not a head or a deputy head of any department.  He submitted that the head or deputy head of departments are in grades that are above grade 14 and he was in grade 14.  The CBA considered the general employees to be in grades 1 up to 14.

This argument cannot be assailed it is clear that the appellant was in a grade that entitled him to receive overtime.  The arbitrator was wrong to have considered the appellant to be a manager inspite of all the provisions and the agreement between the parties (the CBA) which provided otherwise, that he was a general employee.

Ground number 1 of the appeal therefore has merit ground number 5 (a) of the consolidated grounds of appeal therefore has no merit and the arbitrator was right in not deducting the amounts that had been paid as overtime.  Indeed the respondent had been paying this allowance previously and its refusal to pay it makes no sense and must be rejected.  There was overwhelming evidence that the appellant was not a managerial employee. Ground of appeal number 5 (a) has no merit as overtime was payable.

Responsibility allowance

I have carefully gone through the heads of arguments filed by the respondent and the argument is that the position of liquor undertaking manager was not eligible for payment of responsibility allowance.  The respondent received this allowance by virtue of the fact that he was in grade 10 but as a grade 14 employee, he received superior remuneration and this adequately compensated him for the special responsibilities.

The appellant has not outlined or shown that he, as a liquor undertaking manager was entitled to a responsibility allowance.  The arbitrator cannot be faulted for not awarding this allowance.

Ground of appeal number 5 (b)

The issue that was before the arbitrator was one of quantification of damages.  The employer had not filed a claim that it had overpaid the appellant over the past 5 years.  A claim had to be properly made and the appellant given an opportunity to defend himself in relation to an over payment before the arbitrator could be entitled to rule that there had been an over payment and properly deduct.  To deduct as suggested by the City of Masvingo would have infringed on the appellant’s right to be heard as the terms of reference did not cover this issue.  There is therefore no basis to uphold ground of appeal number 5 (b).

Professional allowances

The Collective Bargaining Agreement allows for the payment of a professional allowance to grades 1 to 14.

Section 5 provides that professional allowance for those eligible for it shall be 25% of one’s pay.

The allowance is therefore not payable to every employee by virtue of being a grade 1 up to grade 14.  One had to also be eligible for it.  The arbitrator’s finding cannot be faulted in this regard as no evidence was placed before him to his satisfaction that the appellant was eligible for this allowance.  The employer showed and established that the managerial committee was the one with the mandate to establish who is and who is not eligible for the professional allowance.  They gave initially the allowance to employees with a higher National Diploma and decided in a managerial committee to give degreed employees.  The appellant did not have the requisite qualifications and was therefore not eligible.  The conclusion by the arbitrator is not unreasonable it is supported by the evidence placed before the arbitrator.

Therefore, ground of appeal number 2 cannot succeed.

Entertainment allowance

This was an allowance that was specific to a liquor undertaking manager.  This post had become redundant and both parties accept this fact.  The arbitrator ordered that the appellant be reinstated to an alternative and reasonable grade 14 positions.

The appellant could not be reinstated to a liquor undertaking manager position which carried this allowance.

So he cannot claim this allowance as he was not reinstated to the position of a liquor undertaking manager but any reasonable alternative position which is a grade 14 position.

The appellant has not shown that in the alternative position, he was entitled to an entertainment allowance.  He therefore failed to prove his entitlement to an entertainment allowance and the arbitrator cannot be faulted for his decision in this respect.

Vehicle allowance

The appellant argues that he was entitled to an allowance of 400 United States dollars for using his own vehicle for supervisory purposes as he visited the beer halls spread all over Masvingo.

The appellant has not pointed to anything that gave him this right.  The respondent was receiving a transport allowance on a monthly basis and he has not disputed it.

The appellant has therefore failed to prove his entitlement to a vehicle allowance.  The Supreme Court in the case of Kuda Madyara v Globe & Phoenix Industries refused to grant an allowance claimed where no documentary evidence was placed before the court to prove entitlement.  The arbitrator can thus not be faulted in this regard.

Preliminary point

The preliminary point raised by the respondent was not persisted with as the appellant withdrew his claims under the original ground of appeal number 5 which related to damages in lieu of reinstatement.

In the result, the appeal only succeeds in relation to ground number 1 of the consolidated grounds of appeal.

The following order is made.

The arbitral award is confirmed and upheld except to order that the respondent pays the appellant overtime in the sum to be agreed upon between the parties or as quantified by the court in the event that the parties fail to agree on the amount payable.

Chihambakwe, Makonese & Ncube, respondent’s legal practitioners