Makumbe Primary School v Vivian Makumbe & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/14/16
HELD AT HARARE 10TH NOVEMBER 2015
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/14/16

HELD AT HARARE 10TH NOVEMBER 2015			CASE NO LC/H/535/15

& 22ND JANUARY 2016

In the matter between:

MAKUMBE PRIMARY SCHOOL			Appellant

And

VIVIAN MAKUMBE & 2 OTHERS			Respondents

Before The Honourable F C Maxwell, Judge

For Appellant			T Ndoro (Labour officer)

For Respondents		Mr W Kupara (ZESCCWU)

MAXWELL, J:

This is an appeal against an arbitral award issued on 3 June 2015 in favour of the respondents.  The respondents were employed by the appellant in various capacities.  They were being paid wages below the stipulated amount resulting in them referring the matter to conciliation.  The matter could not be settled at conciliation and was subsequently referred to arbitration.  The arbitrator ruled that each of the respondents was underpaid by an amount of $4 495.86.  Appellant was ordered to pay a total of $13 487.58 for the period June 2012 to June 2014.

Aggrieved, appellant noted the present appeal.  Grounds of appeal one to four question the jurisdiction of the National Employment Council for Welfare and Educational Institutions (NEC WEI) to deal with the matter.  Applicant contends that the National Employment Council for Zimbabwe School Development Association and Communities NEC SDA & C) should have handled the matter.  The second ground of appeal states that the School Development Committee runs the day to day business of the school including the remuneration of the respondents.  The fifth ground of appeal denies that respondents were underpaid.  Appellant contends that there was a verbal agreement between the parties that the school could not pay the stipulated wages as the school development committee has no capacity to pay the wages stipulated in the Collective Bargaining Agreement.  The last ground of appeal states that appellant’s right to a fair choice of arbitrator was violated as it did not agree to the appointed arbitrator on the basis of conflict of interest.

In response respondents stated that the NEC WEI had jurisdiction as schools fall under it.  Respondents reiterated that they were underpaid and the appeal should be dismissed.

In oral submissions, Mr Ndoro for the appellant argued that the arbitral proceedings were null and void as the arbitrator did not have jurisdiction to deal with the matter.  He submitted that the matter falls within the ambit of section 46 of the Labour Act [Chapter 28:01] and is one which should be dealt with by this court to determine under which National Employment Council appellant fell.

Section 46 of the Labour Act [Chapter 28:01] states

“46 matters to be determined by Labour Court

In the event of any dispute as to-

the extent or description of any undertaking or industry; or

whether any employees are managerial employees;

the matter shall be referred to the Labour Court for determination.”

I will assume that Mr Ndoro was making reference to Section 46 (a).  In my view the section is not applicable at all.  There is no question of the extent or description of any undertaking or industry.  There is no question of the type of institution that appellant is.  Mr Ndoro contends that since applicant is being run by a school development committee it should fall under the NEC SDA and Cs Collective Bargaining Agreement.  I do not agree.  That CBA regulates the committees and Associations themselves, not the schools which they run.  I am fortified in my views by the certificate of registration of the National Employment Council which was produced by Respondent. Certificate No. 1/2013 confirms the registration of the NEC Council for Zimbabwe Schools Development Associations and Committees of Zimbabwe as an employment council for the Schools Development Associations and Committees in Government Schools (Underlining for emphasis).  The registration was with effect from 8 May 2013.

It is common cause that Makumbe Primary School is under the ambit of the Roman Catholic Church.  The Mission Superior at Makumbi Mission confirmed that the mission owns the property but the day to day running of the school and the management of the school funds fall under the mandate of the school Development Committee.  The arbitrator was alive to this fact and stated in his analysis

“The Statutory Instrument 60 of 2013 defines mission schools as follows ‘schools which are run by religious organisations as the responsible authority whose employees are either directly employed by the responsible authority or School Development Committees.”

The arbitrator concluded that the institution clearly falls under mission school category by virtue of its operations and the wages to be paid to claimants are those of mission schools.  His conclusion is unassailable.

Certificate No 3/2012 confirms the registration of the National Employment Council for the Welfare and Educational Institutions as an employment council for the Welfare and Educational Institutions with effect from 15 August 1996.  The scope of the registration was varied with effect from 22 October 2012 to exclude the Private Hospital Sectors.  The interest covered are

welfare organisations

any school or hospital other than a government school or hospital

any day nursery, creche, nursery school or similar institution and

any religious institution.

Clearly the appellant falls within the NECWEI umbrella.  The arbitrator had

jurisdiction to deal with the matter.

Grounds of appeal number five and six were not pursued and I will consider them abandoned.  Mr Ndoro seemed convinced that the matter should have been referred to this court in terms of Section 46 of the Labour Act [Chapter 28:01].  His conviction has no basis in law.  I am persuaded by Mr Kupara’s brief submissions that the appeal has no merit and should be dismissed.

Consequently I order as follows:

The appeal be and is hereby dismissed for lack of merit.