Grace Mawere & 4 Others v Reserve Bank of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/816/2016
HARARE, 21 NOVEMBER 2016 &
30 DECEMBER 2016
CASE NO LC/H/249/2016
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/816/2016

HARARE, 21 NOVEMBER 2016 &			        CASE NO LC/H/249/2016

30 DECEMBER 2016

GRACE MAWERE & 4 OTHERS						APPELLANTS

RESERVE BANK OF ZIMBABWE					RESPONDENT

Before the Honourable G Musariri, Judge

For the Appellants	Mr E Donzvambeva (Attorney)

For the Respondent	Ms V Sithole (Counsel)

MUSARIRI J:

On 4th April 2016 at Harare, Arbitrator S Mugumisi issued an arbitration award. He dismissed the appellants’ claims against the respondent for an increase of their retrenchment packages. The appellants then appealed to this court. The respondent opposed the appeal.

The gist of the appellants’ case is captured in their heads of argument as follows:

“ 8.	It is submitted that the arbitrator misdirected himself, on a question of law, by failing to appreciate that retrenchment being a collective process that was carried out by the respondent’s works council, there was no way the appellants in this matter could be paid a retrenchment package that was significantly lower than that which was paid to their counterparts who, like the appellants, were also employed as Senior Provincial Analysts and with whom they enjoyed the same salary, grade and benefits (as was espoused in one Busisiwe Sibanda’s affidavit that was placed before the arbitrator).

9.	… the arbitrator failed to appreciate the appellants’ argument contained at paragraph 9 of their reply to the respondent’s submissions to the arbitrator. That argument, that retrenchment is a collective process and that packages are not negotiated individually as the process is collective in nature, was not appreciated or commented upon by the arbitrator, who chose instead to argue on behalf of the respondent that two or several people may hold the same job titles but still be paid differently depending on what is agreed upon at the time of entering the contract of employment.”

The appellants were initially employed by the respondent. The respondent then set up a company called Fiscorp (Pvt) Ltd which it wholly owned. The Governor of the respondent chaired the board of directors of Fiscorp. The respondent transferred the appellants to Fiscorp. In due course they were retrenched together with other employees. They were paid retrenchment packages which were significantly less than their colleagues who were similarly employed as Senior Provincial Analysts. It was this discrepancy in packages which was referred to arbitration resulting in the aforesaid award.

The respondent’s position is captured in their Heads of Argument thus:

“2.3	In line with its operations, Fiscorp then designated the positions of the seconded staff. By letter dated 20 February 2008, Fiscorp management submitted a list of its staff advising the RBZ of new designations be equated to certain grades within the RBZ. This was a clear acknowledgement of the fact that the new titles did not match those existing in the RBZ such that they needed to be aligned with the RBZ grading system.

2.4	By letter dated 22 February 2008, the RBZ Human Resources Manager responded advising Fiscorp Management that the RBZ Human Resources Division had no authority to align Fiscorp positions with those of the Bank without the approval of the Fiscorp Board. (See Anexture A). This communication was premised on the simple fact that the Fiscorp Board, as the ultimate decision making body, not the Chief Executive Officer, shouldered the responsibility of sanctioning any change in grades as this had financial implications on the company.

2.5	Despite the communication to Fiscorp management on the issue, the RBZ was never furnished with the Board resolution that the issue of re-alignment of Fiscorp’s newly assigned positions with the RBZ grading system never materialised.”

On that basis the respondent reckoned that the appellants retained the same grades they had when they were seconded to Fiscorp. Their retrenchment packages were calculated using rates applicable at those grades. As for those analysts who were paid higher packages, the respondent stated that this resulted from a decision made by the chairman of Fiscorp. Thus they cannot be faulted for the resultant discrepancies in the packages.

To the extent that the respondent and Fiscorp are two different entities I consider the respondent’s argument as sound. The only basis upon which the respondent could upgrade the appellant’s packages was upon the advice of Fiscorp’s Board. That was not forthcoming resulting in the position taken by the respondent who effectively acted as the agent for Fiscorp during retrenchment. Alternatively the arbitrator noted that the appellants accepted payment of the packages without demur. They thus waived whatever rights they might have had arising from the retrenchment.

I turn now to the appellants’ plaint about discrimination. There is no doubt that the resultant packages create a perception of discrimination against the appellants. But that alone is no ground for upsetting a deal duly negotiated, agreed and executed.

Whatever claims (valid or otherwise) the appellants might have could be directed to the principal in the matter that is Fiscorp. In the result I come to the same conclusion as the arbitrator though for varying reasons. Thus his award cannot be reversed.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G Musariri

J U D G E