John Taanikai v Athienitis Spar

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/619/14
HELD AT HARARE 1ST SEPTEMBER 2014
CASE NO
JUDGMENT NO LC/H/619/14
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/619/14

HELD AT HARARE 1ST SEPTEMBER 2014		CASE NO LC/H/399/14

& 26TH SEPTEMBER 2014

In the matter between:-

JOHN TAANIKAI				Appellant

And

ATHIENITIS SPAR				Respondent

Before The Honourable P Muzofa, Judge

For Appellant		Mr Gwawawa (Trade Unionist)

For Respondent		Mr Mushiwokufa (Human Resources Manager)

MUZOFA, J:

The appellant was employed  as an internal guard a grade 2 position by the respondent in 2003.  Appellant subsequently resigned in 2013.  The position he held at the time of resignation forms the basis of this appeal.  It is not in dispute that appellant was promoted to the position of Lance Corporal in 2007 and in 2008 he was promoted to the position of Corporal being a grade 6 position.  The promotions were by way of letters from the managing director.  According to appellant in the later part of 2008 appellant’s duties changed to that of security supervisor.  The appellant’s payslip reflected that he was in grade 9 his designation referred to as junior supervisor but he was paid a salary equivalent to grade 6.  Appellant thereafter made internal inquiries on the salary discrepancies.  He was advised that a mistake had occurred in the payslips otherwise he was in grade 6.  The dispute was eventually referred to an arbitrator.  The arbitrator dismissed appellant’s claim of underpayment.

Appellant then noted an appeal to this court.  The grounds of appeal are set out  below as appears in the notice of appeal.

It is clear from claimant’s payslips that he was now a “”junior”” supervisor. According to the NECS Commercial Sectors there is nothing called a “junior supervisor”” but a supervisor (See annexure 3).  It is therefore not doubtful that appellant was now a supervisor since 2009 but earning a grade six salary.

The honourable arbitrator misdirected himself in reaching a conclusion that appellant was not a supervisor when clearly the pay slips show.

Appellant’s job was to supervise till operators, guards and other staff, taking cash to the cash office and to deploy till operators. This is clearly a supervisory role.

Employer admitted to promoting appellant.

The respondent’s version was that when appellant was engaged he was

graded using the Private Security Sector grades.  The appellant was employed as a watchman and therefore the employment relationship was governed by the National Employment Council for the Commercial Sector (NECCS).  The two promotions that were made were in terms of the private security sector grades.  In terms of the correct Collective Bargaining Agreement the appellant was in grade 2 and there was no post known as junior supervisor.

Respondent denied that appellant conducted supervisory duties, it was alleged his duties were ordinary watchman duties.  It a bid to correct the anomaly respondent did not down grade the appellant from grade 6.  It was also submitted that the appellant was not promoted to be a junior supervisor.  The practice of the respondent in relation to any promotion was by way of a letter authorised by the respondent’s Managing Director.  This is what transpired when he was promoted initially to corporal.

There are factual issues that I propose to address.  Appellant does not dispute that he was initially promoted and graded using an incorrect Collective Bargaining Agreement.  Appellant did not dispute that his previous two promotions were made by the Managing Director.  Appellant also confirmed that he did not receive a letter from the Managing Director promoting him to the post of junior supervisor.  In my view the appellant was not promoted.  The procedure for a promotion was not satisfied.  If it were to be accepted that the payslips showed he had been promoted this would result in an absurdity.  The proper procedure for a promotion should be followed.  I am cognisant of the fact that respondent’s human resources department was not astute at all.  By 2005 it discovered the incorrect grading and wrote a letter to the appellant.  However in 2007 and 2008 the appellant was promoted applying an incorrect Collective Bargaining Agreement.  The payslips continued to reflect the incorrect information.  Clearly from 2005 appellant was aware that his employment relationship was governed in terms of the NECCS.  It was submitted that there was no post known as junior supervisor.  In my view the appellant was not promoted.  It must be noted that promotion of an employee is a privilege, left to the discretion of the employer.  It is not a right an employee is entitled to claim, See Muwenga v PTC 1997 (2) ZLR 483 (SC).  Appellant cannot insist on a promotion to a supervisor where clearly there is no proof of such promotion.  There was no proof to show that his duties were that of a supervisor.

The arbitrator’s findings cannot be faulted that appellant has no claim against the respondent.  The issue of the incorrect application of the Private Security Sector agreement being unchallenged means appellant is not entitled to the claim he made.  In addition appellant failed to show that he was promoted to the post he claims.

In view of the foregoing the appeal has no merit accordingly the following order is made.

The appeal it being without merit be and is hereby dismissed.

Each party to bear its own costs.