Lutheran Development Services v Godfrey Chayambuka & 52 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/283/2016
HARARE, 11 MARCH 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/283/2016

HARARE, 11 MARCH 2016  	  		         	CASE NO. LC/H/329/15

AND 6 MAY 2016

In the matter between:-

LUTHERAN DEVELOPMENT SERVICES				Appellant

And

GODFREY CHAYAMBUKA & 52 OTHERS				Respondents

Before Honourable P. Muzofa, Judge

For Appellant		G Makings (Legal Practitioner)

For Respondents		S. Dube (ZESSCWU)

MUZOFA, J:

The appellant is a non-profit, non governmental organisation which provides humanitarian relief and it also implements fixed duration rural development projects.

The respondents were employed by the appellant in different capacities as security guards.  It is unclear when they were engaged.  The respondents were on two year fixed term contracts that were renewed continuously until December 2013 when appellant did not renew the contracts.

Respondents raised a grievance that they were underpaid from January 2010 to December 2013 in terms Statutory Instrument 58 and 59 of 2013.  The two Statutory Instruments provide for minimum wages for the years 2011 and 2012.

When all efforts to settle the dispute failed the matter was referred to an arbitrator.

The claim before the arbitrator was for a combined total of $226 112.85.

The arbitrator after considering both parties’ submissions made the following finding

That twenty five of the respondents herein whose names were set out in the arbitration award did not have a claim against the appellant.

That twenty eight of the respondents’ claim for the period 2010 to 2011 had prescribed and were therefore entitled to the claim for the period January 2012 to June 2013 in the sum of $71 239.20.

The appellant dissatisfied by the findings of the arbitrator approached this court on appeal.  The grounds of appeal set out on the notice of appeal are far from being clear, they are just a narration of events.  They seem to raise two issues.

That the arbitrator erred in finding that the January 2012 to June 2013 claim had not prescribed.

That the arbitrator erred by applying the provisions of Statutory Instrument 59 of 2013 which did not have classified and graded occupations.

I will address the grounds of appeal in turn.

It was submitted for the appellant that the respondents’ cause of action was referred as underpayments from September 2010 to December 2013.  Respondents referred the matter to a designated agent on 12 June 2014.  Therefore the claim had prescribed in terms of Section 94 (1) of the Labour Act, “the Act” since the dispute rose in 2010.

For the respondents it was submitted that the arbitrator did not fall into error at all.  To support the submission it was argued that Statutory Instruments 58 and 59 of 2013 were registered and published in 2013.  The Statutory Instruments were effective for the years 2011 and 2012.

To that extent the respondents became aware of the prescribed minimum wages with effect from the date of registration being 2013.  A referral made on 12 June 2014 would therefore have been within the two year period.

I am persuaded by the respondent’s interpretation of the applicability of prescription in this case.  Statutory Instrument 58 of 2013 was agreed upon by both the employer and employee representatives on 14 November 2011.

The statutory Instrument was to be effective from the 1st of January to 31st December 2011.

However the instrument was registered and gazetted through a supplement to the Zimbabwean Government Gazette of 10 May 2013.

Although both representatives were aware as far back as November 2011 what they had agreed on, it only became binding from 10 May 2013.  So from that date that is when any claim could be made based on the Statutory Instrument.

Technically therefore the underpayments for the period January to December 2011 should be considered as from May 2013.  A referral made in June 2014 would be well within the prescription period.

Applying the same reasoning for the 2012 claim, Statutory Instrument 59 of 2013 was entered into on 8 August 2012.  It was promulgated on 10 May 2013.  The claim therefore is determined as from 10 May 2013 and a referral made in June 2014 would be proper.

The claims for 2010 and 2013 were not supported by any Statutory Instrument.  Therefore a determination on whether the claims had prescribed or not cannot be made.

I do not agree with appellant’s interpretation in that by 2010 the respondents were unaware of the minimum wages.  They only became aware of the minimum wages in 2013 and the dispute ensued.  I find no misdirection by the arbitrator as set out by the appellant.  A misdirection was only occasioned in the rejection of the 2011 claim, it had not prescribed.  The respondent did not cross appeal on that issue and it is not the place of the court to make a finding on that aspect.

To that extent the first ground of appeal is dismissed.

The second ground of appeal relates to the application of Statutory Instrument 59 of 2013.

According to the appellant Statutory Instrument 59 of 2013 which was used by the arbitrator refers to grades but it does not classify jobs.  Further to that it was argued that relating Statutory Instrument 59 of 2013 and Statutory Instrument 102 of 2014 which classifies jobs was wrong.  These were independent instruments and should be read separately.  It was submitted that Statutory Instrument 59 of 2013 is unenforceable for being vague since it does not have job classifications and does not provide that it should be read in conjunction with Statutory Instrument 102 of 2014.

For the respondent it was submitted that the Education Sector had a principal Collective Bargaining Agreement Statutory Instrument 192 of 1995.  The said instrument was replaced by Statutory Instrument 102 of 2014 which has the job classifications for the Welfare and Educational Institutions.

Further to that it was submitted that in reading Collective Bargaining Agreements they are read in conjunction with the principal agreement Statutory Instrument 102 of 2014.  The arbitrator therefore correctly applied both Instruments to come up with the correct determination.

I find it difficult to follow appellant’s submissions on this aspect.  Appellant did not controvert the submissions by the respondent that a Principal Collective Bargaining Agreement exists being Statutory Instruments 102 of 2014 which sets out the job classifications.  In my view the legislature would not have intended an absurdity such as the one submitted by appellant.

The minimum wages referred in Statutory Instrument 59 of 2013 refer to grades.  The classified jobs and grades are clearly set out in Statutory Instrument 102 of 2014 which became effective from October 2006.

It would have been improper for the arbitrator not to read the two Statutory Instruments together.  The Principal Instrument sheds light as to who falls within the respective grades referred to in Statutory Instrument 59 of 2013.  Failure to read the two Statutory Instruments in conjunction would result in an anomaly.

I find no misdirection in the arbitrator’s application of the law.

Accordingly the following order is made.

The appeal be and is hereby dismissed with costs.

G. Makings, appellant’s legal practitioners