D Mangenje & 35 Others v Zimbabwe Electricity Transmission and Distribution Company (ZETDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/486/2016
HARARE, 4 JULY 2016 &
CASE NO LC/H/777/2014
19 AUGUST 2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/486/2016

HARARE, 4 JULY 2016 &					         CASE NO LC/H/777/2014

19 AUGUST 2016

In the matter between

D MANGENJE & 35 OTHERS						APPELLANTS

Versus

ZIMBABWE ELECTRICITY TRANSMISSION 			RESPONDENT

AND DISTRIBUTION COMPANY (ZETDC)

Before the Honourable Murasi J

For the Appellants	T Njenda (Trade Unionist)

For the Respondent     A K Maguchu (Legal Practitioner)

MURASI J:

This is an appeal against the decision of an arbitrator. The appellants were employed by the respondent on fixed term contracts. The appellants’ contracts were terminated by the respondent. A dispute arose in respect of the appellants’ entitlements in terms of the contracts of employment. The matter ended up in arbitration. The arbitrator dismissed the appellants’ claims. The appellants are dissatisfied with the award and have approached this court for relief.

The appellants’ grounds of appeal are as follows:

The arbitrator erred at law in making a finding that the appellants (were) was not entitled to Housing and Non-Pensionable contrary to S I 50 of 2012.

The arbitrator erred at law in making a finding that the appellants’ claim was based on SI 1 of 2008 and that S I 1 of 2008 is the applicable instrument in this case.

Mr Njenda for the appellants submitted that the arbitrator was wrong in stating that the Statutory Instrument to be taken into account was SI 1 of 2008. He further stated that a reading of S I 50 of 2012 showed that the appellants were entitled to the housing allowances which were pegged as a percentage of the salary earned. He argued that the use of SI 1 of 2008 by the arbitrator was wrong in the circumstances.

Mr Maguchu for the respondent urged the court to take into consideration that SI 1 of 2008 was the parent CBA in the industry and any subsequent agreements should be read in tandem with the first CBA. In this regard, S I 50/2012 was supposed to be read together with SI 1 of 2008 as the latter gave the conditions and entitlements of the employees concerned. It was argued that SI 1 of 2008 did not give employees on contract entitlement to housing allowances and thus SI 50/2012 could not be read to mean that these employees were entitled to the housing allowances.

Mr Maguchu further submitted that section 10 of SI 1 of 2008 clearly gave the entitlements which the appellants were to receive and thus the arbitrator’s finding in this regard could not be faulted.

The resolution of this matter hinges on a correct interpretation of the statutes concerned. Statutory Instrument 1 of 2008 is the CBA that the employers and the employees agreed to guide primarily their relationship. Section 3 (1) provides:

“3 (1)	These regulations shall apply to—

All contract and casual employees in the service of a company, only to the extent specified in Part III; and”

I have referred to the paragraph that deals with contract employees as it is common cause that the appellants were employed on fixed-term contracts. There is no dispute in that respect. In Part III, section 10 (5) of S I 1 of 2008 provides:

“10 (5)		For the avoidance of doubt, it is hereby expressly declared that—

The provisions of Part VII relating to housing allowance, electricity allowance and full allowance; and

…

….

shall not apply to a contract employee.”

The section cited above clearly makes a contract employee ineligible to receive the allowances specified in Part VII of the statute. This includes the payment of a housing allowance. Put differently, on a literal and grammatical interpretation of section 10 (5) of S I 1 of 2008, and without any attendant absurdity, the section clearly disentitles a contract worker from receiving allowances as specified. The golden rule of statutory interpretation dictates that the words of a statute must be given their ordinary grammatical meaning unless to do so would lead to an absurdity. I see no absurdity whatsoever in construing section 10 (5) of SI 1 of 2008.

The question is, does S I 50 of 2012 provide for payment of housing allowances to the appellants. Mr Njenda sought to argue that the word “salary” should be interpreted to include allowances. The court inquired for the authority for this submission and Mr Njenda stated that this was from a dictionary meaning. I am of the view that if the Legislature had intended the word “salary” to be extended to mean allowances, it would have stated thus in express terms. SI 50/2012 does not give the categories of employees who are entitled to the allowances in terms of classification as permanent or contract employees. It gives the grades instead. If, as stated by Mr Maguchu, it was intended to benefit contract employees, S I 1 of 2008 would have been amended accordingly in section 10 thereof. It is my view that, as it is trite, the Legislature is presumed to know about existing legislation. The appellants’ submissions that they stand entitled to the allowances should therefore fall by the wayside. The court is of the view that the decision of the arbitrator cannot be faulted in the circumstances.

For the aforestated reasons the appeal ought to be dismissed.

The court makes the following order:

The appeal, being devoid of merit, is accordingly dismissed.

There be no order as to costs.

Dube, Manikai & Hwacha, respondent’s legal practitioners