Mazowe Rural District Council & 5 Others V Zimbabwe District Council Workers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/378/16
HELD AT HARARE ON 30TH JUNE, 2015
CASE NO.
JUDGMENT NO. LC/H/378/15
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/378/16

HELD AT HARARE ON 30TH JUNE, 2015		CASE NO. LC/H/126/11

AND 8TH JULY, 2016

MAZOWE RURAL DISTRICT COUNCIL & 	5 OTHERS		Appellant

ZIMBABWE DISTRICT COUNCIL WORKERS UNION		Respondent

Before the Honourables 	E. Makamure, Judge

G. Musariri, Judge,

B.T. Chivizhe. Judge,

For Appellant	: 	Mr. C. Warara, Attorney

For Respondent	: 	Mr. S. Hashiti, Advocate

MUSARIRI J.:

Appellants appealed against a number of arbitration awards issued against them at the instance of Respondent.  The matters involved essentially the same question.  Hence the parties sought and obtained the consolidation of the appeals into one matter.  They then filed a statement of agreed facts dated 27th August, 2014 which was signed by both parties and filed of record.

The essential facts were stated as follows,

“1.1.	The following facts are common cause.

Appellants indisputably employed staff that worked in its hospitals and clinics.

In view of certain economic difficulties and in a bid to retain essential services, Government took the decision that it would pay grants to all employees employed in what was called essential services….  The pay roll system for these employees was handed over to the Salary Service Bureau for timeous processing ….

Subsequent disputes arose as to the effect of the position taken by Government.  This was after Respondent and Appellants had negotiated a Collective Bargaining Agreement whose effect was that the lowest paid employee in the industry was now getting a lot more than the nurses it was felt by Respondent that the gap had to be bridged by Appellants.

……………….

Appellants however, maintained that they were civil servants as they were being paid by the State.

i.	Some of the health staff members had ceased to be Respondent’s members and did not consider themselves affiliated to the Respondent.”

The issues were set out thus,

“The issues

1.2.	The pith of the dispute between the parties is whether the employees concerned were civil servants or they are council employees. If they are civil servants,

a.	Respondent has the locus standi to represent them and,

b.	Appellants do not owe anything.

1.3.	If they are not civil servants,

a.	Respondent has the locus standi to represent them and,

b.	The amounts set out by the various arbitrators as due are payable.

1.4.	In deciding this the Court also has to consider whether or not the employees are or were members of the Respondent as to entitle the Respondent to represent them in this matter.

1.5. 	In real terms, the question which the Court has to answer is whether having been appellant’s employees, those employees ceased being so at any stage both as a matter of fact or as a matter of law.

1.6	…………………………………………..”

I have considered the facts and issues set out by the parties.  My analysis leads me to the conclusion that the health staff were not council employee but civil servants.  Why? It is common cause from the foregoing paragraph 1.5 that the employees were initially employed by the various councils.  So the question becomes whether that position changed at any stage.  In other words did the intervention by the State, with regards to payment of their salaries, change their employer?  Filed of record is a letter dated April, 2012 written by the Secretary for Health and Child Care.  The Secretary declaimed,

“Please be advised that health personnel under the local authority are indeed local authorities personnel, are providing health services on behalf of the Central Government……”

On the basis of this letter one might conclude that the employees remained council employees.  However the underlying reality shows otherwise.  The four 4 condition attached to the salary grant by government appear in the Secretary’s letter dated 16 June 2011.  These are they,

“The following conditions are attached to the salary grant;

Salaries and allowances are fully paid by Central Government at Government rates.  Transport and housing allowances are not taxable.

Rural District Council health personnel are on Government Pension effective 1st January 2007 since no response was availed to the Ministry regarding their pension scheme which was administered by Unified Pension Fund.

Health Staff conditions of service are determined by Central Government  as informed by the national fiscus and not through collective bargaining.

The Performance Advancements are still outstanding since inception of salary administration by Salary Service Bureau in 2007, however the issue is still pending and receiving attention.”

The conditions show that the State pays the employees’ full salaries.  The State underwrites their pension.  The State determines the conditions of service and is working out “performance advancement.”

The essential element of an employment contract is the rendering of personal service to an employer who pays for the service and controls the conditions of service.  In casu the state controls the conditions of service and pays for it.  Thus the State is the real employer though council appears as the employer.  This is an example where substance trumps form.  Our courts are entitled to look to the substance of the dealings between the parties in order to deliver real and substantial Justice.  I therefore agree with Appellants that their health personnel are civil servants employed by the State.  It follows from paragraph 1.2 b. that Appellants do not owe Respondent anything.  The Arbitration awards against Appellants must be set aside.

WHEREFORE IT IS ORDERED THAT;

The appeal be and is hereby allowed;

The arbitration awards in favour of Respondent in respect of alleged underpayment of Appellants’ health personnel are set aside in toto; and

Each party shall bear its own costs.

………………………………………………………...G. MUSARIRI

JUDGE

I agree							………………………………………………………...

E. MAKAMURE

JUDGE

I agree							………………………………………………………...

B.T. CHIVIZHE

JUDG