Godfrey Nzombe & Angela Shoko v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/210/2021
HARARE, 21 SEPTEMBER 2021
CASE NO LC/H/52/20
AND 05 NOVEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/210/2021

HARARE, 21 SEPTEMBER 2021			   CASE NO LC/H/52/20

AND 05 NOVEMBER  2021

In the matter between:-

GODFREY NZOMBE				1st APPELLANT

ANGELA SHOKO					2nd APPELLANT

AND

CITY OF HARARE					RESPONDENT

Before the Honourable Manyangadze  J

For the Appellants		Mr J. Mambara (Legal Practitioner)

For the Respondent		Mr C. Kwaramba  (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the decision of the Designated Agent for the National Employment Council; Harare Municipal Undertaking (NEC), issued on 19 March 2020.

In the determination, the Designated Agent dismissed the appellants’ claim for allocation of 40 litres of fuel per week as a contractual benefit.

The brief facts of the matter are that the appellants are employed by the respondent as Principal Auditors.  They are placed in grade 6 on the hierarchy of posts. In terms of their contract of employment, the appellants are entitled to a company vehicle. The respondent also has a policy in terms of which an employee can obtain a loan to purchase own vehicle in lieu of the company vehicle.

The appellants purchased their own vehicles through the loan scheme.  They were being provided with 40 litres of fuel for both personal and business use.

On 27 February 2019, the Town Clerk wrote a memorandum, in which he communicated the decision to suspend fuel allocation to all employees using personal vehicles.  About three weeks later, this was followed by another memo, in which it was notified that employees in the appellants’ grade were now entitled to 20 litres of fuel per week.   The appellants lodged a complaint with the NEC.  This led to a hearing before the NEC Senior Designated Agent, which resulted in the determination they are appealing against.

The grounds of appeal are stated as follows;

“The Designated Agent erred and grossly misdirected herself by relying on the provisions of a motor vehicle policy that was not produced but assumed to be in existence yet the Respondent produced and was relying on a Motor Vehicle Policy that was adopted in 2018 and clearly provided for the ascension to it by the Appellants for it to be binding upon them.

The Designated Agent erred and grossly misdirected herself on a point of law when she concluded that terms of a contract of employment should be stated in black and white in the contract of employment document yet other contractual rights may accrue during the course of the employment and may not be inserted in the contract of employment.

The Designated Agent erred and grossly misdirected herself when she made a finding that the allocation of 40 litres fuel per week was not contractual contrary to the evidence presented by the Appellants.

The Designated Agent misdirected herself when she concluded that the Respondent could unilaterally reduce the fuel allocation when same was connected to the use of the motor vehicle for business and private use, a contractual right the Appellants had accrued.”

The gravamen of this appeal is reflected in ground of appeal No. 3. It is the question of whether the allocation of 40 litres of fuel per week to the appellants was a contractual or discretionary benefit.  The appeal can properly be crystallised into a resolution of that issue.

Indeed, the submissions made by the parties, both written and oral, did not follow the sequence of the grounds of appeal cited above.  They both focussed on the sole issue of whether or not the allocation of 40 litres of fuel per week was a contractual or discretionary benefit. The appeal turns on this question.

The legal position on contractual vis avis discretionary benefits is trite, and it is one on which both parties are clear.  Contractual benefits, stemming as they do from a binding contract, cannot be unilaterally withdrawn or adversely varied.  Discretionary benefits, which are given at the discretion of the employer and are not ex contractio, can be withdrawn or varied by the employer.

The submissions by the parties do not contest this clear legal position. What is however, vehemently contested is whether the facts of the matter establish that the benefit in question was contractual.  Put differently, the pertinent question is whether there is evidence on record proving that the benefit was contractual. If the record bears such evidence, and the Designated Agent disregarded such evidence, then she seriously misdirected herself in dismising the appellants’ claim.

On the other hand, if the assertion by the appellants, viz that the benefit was contractual, it not borne out by the evidence on record, there would be no basis on which to tamper with the Designated Agent’s findings and determination.

The Designated Agent, in her determination, found that there was no evidence of a contractual benefit.  The fuel allocation was management’s prerogative, having regard to the financial challenges faced by Council and the prevailing fuel shortages.

The rationale underlying the determination is reflected on page 7 thereof (page 11 of the record), wherein is stated;

“I do agree with the Claimants that they were entitled to company vehicles in terms of their contracts of employment; the Respondent did not also dispute this. It is however important to state that entitlement to a company vehicle is one thing and provision of fuel is another thing. The amount of fuel to be provided to an employee is determined by the employer. This is why the amount of fuel was not provided for in the Claimants’ contracts of employment.  If it had been in black and white on the Claimants’ contracts then the Claimants had a right to claim that it was contractual. The Claimants failed to substantiate their claim to prove that indeed the allocation of 40 litres was contractual; they did not state where it emanated from for them to be entitled as of right. The vehicle policy on clause 1.7.3 clearly provides that  ‘….the employees shall be entitled to prevailing fuel allocations as prescribed by management from time to time”  Therefore fuel allocation was not negotiable but it was management’s prerogative.  There was nothing absurd with the Town Clerk’s communique that due to financial challenges faced by Council and fuel shortages, fuel was to be issued as and when available.”

The respondent stands in support of the reasoning by the Designated Agent.  It emphatically avers, in its notice of response and heads of argument, that the appellants failed to discharge the onus resting on them to prove that the fuel allowances they were claiming, were contractual benefits.  In this regard, reference was made to the case of Astra Industries Limited v Peter Chamburuka SC  27/12, in which the point was made that the onus rests on he/she who makes a particular averment to adduce evidence to substantiate such averment.

The respondent further referred to the remarks of ZIYAMBI JA in the case of National Railways of Zimbabwe v Zimbabwe Railways Artisans Union &  Ors  S-46-15,…….”

“….allowances, not having been negotiated by the parties and therefore not forming part of their collective bargaining agreement, are not a right or entitlement available for appropriation by the employees.  This would be a matter for the parties to bargain and reach agreement on…”

Reference was also made to the respondent’s motor vehicle policy adopted on 19 July 2018, which provides, in clause  1.7.6.3;

“Persuant to  1.7.6.1 and  1.7.6.2 above, the employees shall be entitled to prevailing fuel allocations as prescribed by management from time to time”

It is clear, in terms of this policy, that fuel allocation, at least the quantity thereof, is at the discretion of the employer.

The appellants insist they are entitled to the 40 litres fuel allocation as a contractual benefit. They pointed out that the policy document relied upon by the respondent and which was the basis of the Designated Agent’s determination, was adopted “long after the appellants had joined the service of City of Harare”.  In other words, it was put in place long after the appellants had been offered and had accepted and were enjoying contractual benefit in question.

Further to that, the appellants averred that they did not consent to the policy document, as they did not sign the declaration portion. The respondent has therefore not been able to show evidence of when and where the appellants agreed to a reduction of their contractual benefit.

The appellants referred the court to the case of Air Zimbabwe (Pvt) Ltd v Emmanuel Zendera & Others 2002 (1) ZLR 132(5), where the court stated,…..

“It is quite clear from the above that the appellant in 1977 offered the respondents an increase in the overseas meal allowance.  The Respondents on the appellant’s own admission accepted the offer.  Upon acceptance of the offer, the contract between the parties was perfected and a legal and contractual relationship was created between them …. A contract having been concluded between the appellant and the respondents, it could not legally be repudiated or altered by either party unilaterally… The appellant’s reduction of the meal allowance in 1999 was unilateral and a breach of the existing contract between the two parties.”

In line with this case, the crux of the matter then is whether there is evidence of an offer and acceptance of the 40 litre fuel allocation. The offer and acceptance must be in circumstances that perfect a contract between the two parties, being the employer on the one hand, and each of the two appellants, on the other hand.  It is simply a matter of going back to the basics of the law of contract.

In an endeavour to prove the existence of such offer and acceptance, the appellants referred to two memos. Both are departmental memos.

One is dated 10 November 2015, from the Director Health Services to the Finance Director. It concerns some Matrons who had been promoted to Grade 6, it reads, in the relevant paragraph;

“They are entitled to fuel allocation of forty (40) litres per week in terms of Council Policy as they are using their personal vehicles for council work.”

The other one is dated 8 July 2017, from the Audit Manager to the Supply Chain Manager, and reads:

“Mr Godfrey Nzombe joined the Audit Section as a Principal Auditor with effect from 1 August 2017. May you allocate him fuel of 40 litre per week as provided for Principal Auditors.”

The two memos are requests by Department Section Heads for allocation of 40 litres of fuel to employees in their departments. The request follows the employee’s elevation to Grade 6, and is apparently based on a Council policy that entitled them to that allocation. It is copies of these memos that were placed before the Designated Agent.

Can these letters be evidence of the offer and acceptance of allocation of the fuel as a contractual benefit?  The Council policy referred to was not produced.  It certainly would have shed light on the nature and scope of this allocation. The departmental requests referred to, in my view, do not constitute sufficient or satisfactory evidence of the existence of a contractual obligation. It is not clear why the appellants have chosen to rely on these requests, instead of the policy document itself, to demonstrate the existence of a contract.  The onus certainly lay on them to substantiate their claim to the existence of a Council policy that created contractual rights and obligations between each one of them and the respondent in respect of the fuel allocation.

The appellants have not satisfactorily established that the 40 litre allocation of fuel was an accrued contractual benefit.  They have not shown that it can be properly treated as an integral part of their contract of employment, having been incorporated therein post conclusion of their original contracts.

In my view, the Designated Agent did not have sufficient material upon which to make a finding in the appellant’s favour.  In the circumstances, she cannot be faulted for rejecting their claim. There is no justifiable basis on which to upset her findings of fact.  The appeal cannot succeed in the circumstances.

The respondent seeks costs on a higher scale. There is nothing in the manner in which the appellants have conducted their appeal which justified costs on the higher scale.

In the result it is ordered that:

The appeal be and is hereby dismissed.

The Appellants bear the Respondent’s costs.

J. Mambara & Partners, - Appellants’ Legal Practitioners

Mbizo, Muchadehama & Makoni – Respondent’s Legal Practitioners