Cosmas Chikwawawa v National Social Security Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/226/20
HARARE, 23 SEPTEMBER 2016
CASE NO. LC/H/72/13
AND 23 OCTOBER 2020
JUDGEMENT NO LC/H/226/20
---------




IN THE LABOUR COURT OF ZIMBABWE  JUDGMENT NO. LC/H/226/20

HARARE, 23 SEPTEMBER 2016			 CASE NO. LC/H/72/13

AND 23 OCTOBER 2020

In the matter between: -

COSMAS CHIKWAWAWA						Appellant

AND

NATIONAL SOCIAL SECURITY AUTHORITY			Respondent

Before the Honourable B.T Chivizhe: Judge

For Appellant:	Advocate R. Bwanali

For Respondent	Mr G. Mhlanga (Legal Practitioner)

CHIVIZHE, J:

The present judgment was prepared in 2018.  There has been a delay in its handdown.  l tender my most sincere apologies to the parties.

This is an appeal against a determination of the Appeals Committee handed down on  9th of January, 2013 in which the Appeals Committee ruled that there was no relationship between the then highest worker grade (grade 9) and the newly introduced grade 13. The Appeals Committee also found that the Appellant’s salary was not reduced by reason of the evaluation exercise and therefore there was no unfair labour practice.

The factual background to the matter is that the Appellant was employed by the Respondent as an Education Officer (grade 9 employee) with effect from June 2005. In 2008 the Respondent engaged an evaluator to review a job evaluation exercise which Respondent had carried out in or about 1990. The evaluator employed the Hary system which involves the scoring by the employees of points on set criteria. The exercise resulted in the creation of more grades than was previously the case. The employees were then placed in various grades depending on the points scored in accordance with the Hay’s job evaluation rules.

After the evaluation exercise the Appellant was moved from grade 9 to the then new grade 10. The evaluation exercise was approved by the Respondent’s Board and implemented in 2009. On the 28th of January 2009 Appellant was transferred to another department as Research and Statistical Officer in grade 13. He however was being remunerated at grade 10. The Appellant was aggrieved and appealed to an ad hoc committee- the Job Grading Appeals Committee. The Committee which constituted both employee and management representatives assessed the Appellant and placed him in grade 10 in accordance with the Hay’s rules.

The Appellant still aggrieved appealed in terms of the Code of Conduct to the Grievance Committee and Appeals Committee. When he was unsuccessful there he then appealed to the Appeals Committee. The Appeals Committee handed down its ruling as referred to supra. That appeal having once again failed the Appellant then noted the present appeal against the determination of the Appeals Committee.

There were three grounds of appeal filed. The Appellant contended in his first ground of appeal that he was not invited to the appeal hearing and the hearing was conducted in his absence. This was clearly in breach of Part IV Section 9.7 (d) of the NSSA Code of Conduct. On this basis the proceedings before the Appeal Committee were invalid and ought therefore to be set aside.

The Appellant contended as his second ground of appeal that the Appeals Committee erred when it found there was no relationship between the former grade 9 being the highest worker grade and the current grade 13. His view was that they ought to have found that the grades being equivalent were related. They both related to the highest worker level which was where Appellant should have been placed. The Appellant submitted that the current grade 10 was the lowest officer grade and was 3 grades lower than the highest officer grade. He further submitted that the Respondent was thus committing an unfair labour practice by remunerating him at grade 10.

The Appellant in his third ground of appeal contended that the Appeals Committee erred and misdirected itself in arriving at its determination as the Committee did not address itself to the issue as to whether Appellant ought to be paid for the work he was doing then which was that of a Research and Statistics Officer i.e grade 13 instead of being remunerated at grade 10 which was the situation prevalent then.

In response to the appeal the Respondent submitted that the Appeals Committee correctly found that there was no relationship between the then highest worker grade (grade 9) and the newly introduced grade 13. The Appeals Committee had also correctly found that the Appellant’s salary had not been reduced by reason of the evaluation exercise. The Respondent had thus not committed an unfair labour practice. There was no legal or factual basis for Appellant to be placed in grade 13 when Appellant had not scored the required points for that grade.

In regards the specific grounds of appeal the Respondent contended in respect of ground of appeal number (1) that the Appeals Committee was obliged on the basis of section 9 (9.7)(d) of the Code of Conduct to determine the appeal on the basis of the record. The Respondent further contended that the Appeals Committee had recommended that Appellant posts along with other posts in the entire department were to be sent for re-evaluation since it was apparent that there were changed circumstances from the time the jobs were evaluated. The Appellant instead of exhausting the internal remedies had instead chosen to lodge an appeal with the Labour Court. The Respondent ‘submission was that the matter was improperly placed before the Labour Court.

In respect of the second ground of appeal Respondent denied all the allegations by the Appellant. The Appellant had, according to Respondent, failed to meet the criteria for grade 13 he could not thus be placed in a grade for which he was not qualified. There was according to Respondent no relationship between the previous grade 9 and the current grade 13. The submission by Appellant was clearly misconceived. The Appellant had also not been demoted. Respondent had thus not committed any unfair labour practice.

In regards the third ground of appeal the Respondent’s position was that the decision of the Appeals Committee was proper. The Appellant having failed to meet the set criteria to be in grade 13 it would have been improper for the Appeals Committee and the Labour Court for that matter to direct that Appellant be placed in grade 13 as suggested by Appellant. Both parties appeared before me and argued their cases on the basis of the papers as filed. The first issue that arises is the jurisdictional issue taken by the Respondent. The Respondent contended that the appeal was improperly placed before this court. The appeal being based on the grievance handling process of the Code of Conduct the appeal ought to properly have been referred to a Grievance Appeals Committee and then the Labour Relations Officer. The Respondent relied for the proposition on clause 12.1 (e) of the Code.

The Appellant’s submission was that the appeal was properly placed before the Labour Court in terms of section 9.7 (1) of the Code of Conduct. Apart from that the Appellant is entitled in any event on the basis of section 92 D of the Labour Act [Cap 28:01] to appeal to the Labour Court against any determination made under an employment Code. My finding is that the appeal, on the basis of clause 9.7 (1) under Part IV Appeal, is properly before this court. The provision reads as follows;

“(1) If unsatisfied with the decision of the Appeals Committee, either party may appeal to the Labour Relations Tribunal within fourteen (14) days from the date of receipt of the decision.”

It is also clear, contrary to Respondent’s submission, that clause 9.7 under Part IV of the Code deals with both appeals i.e against Disciplinary Committee and Grievance Committee.

In regards the first ground of appeal it is clear that the ground is meritorious. The Appellant contends that there was a violation of Part IV Section 9.7 (d) in that the appeal was conducted in his absence. His right to be heard was therefore violated. Clause 9.7 (d) reads as follows;

“At the appeal hearing, the employee shall be present in person and the hearing shall proceed on the basis of the record and summary of the minutes of the proceedings of the disciplinary committee…”

The Respondent’s submission is that section 9.7 should not be read in isolation. Section 9.5 of the Part IV of the Code shows that “the decision of the Committee shall be based on documented facts supplied to the Committee from the record of Disciplinary/Grievance proceedings.” The Respondent’s submission is that the use of the word ‘shall’ indicates that it is peremptory that no oral evidence is to be adduced at the appeal hearing  and the decision is to be based on the four corners of the record. On this basis the Respondent’s contention is Appellant was therefore not denied his right to be heard in the circumstances.

It is my observation that the Code of Conduct is in itself a poorly drafted document. It is confusing as it seems to provide in certain sections for disciplinary and in other sections for grievance handling matters. The Code is however clear that the Appeals Body for both processes is the same. Both provisions relied upon the parties are therefore valid provisions in support of each party’s position. Part V Section 9.7 of the Code clearly grants employee rights of an appeal hearing to be conducted in his presence. Section 9.5 of the Code also seems to suggest that no oral evidence is to be adduced at appeal hearing and the decision is based on the four corners of the record.

My view is in such circumstances the Code must be read in favour of protection of rights rather than deprivation of rights. For that reason the Respondent Appeals Committee in my view clearly violated Part IV clause 9.7 (d) of the Code of Conduct in that an appeal hearing was conducted in Appellant’s absence. The record in any event clearly shows that the Appeals Committee did receive evidence from Human Resources Manager, Director Benefits and Research Schemes and Planning Manager for what was termed ‘clarification’. No clear basis was then laid by Respondent for excluding the Appellant from the proceedings.

Having reached this conclusion it is clear that the Respondent having committed a procedural irregularity sufficient to vitiate the proceedings the determination by the Appeals Committee clearly stands to be set aside. The matter must be remitted to the Appeals Committee for that Committee to hear the appeal afresh and in compliance with the Code provisions.

It is accordingly ordered as follows;

The appeal is allowed with costs.

The determination of the Appeals Committee handed down on the 9th of January, 2013 be and is hereby set aside.

The matter is remitted to the same body for a rehearing of the appeal in accordance with the provisions of the Code of Conduct.