Mercy Corp v E. Mudzamiri & Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/693/2014
HARARE, 07 & 24 OCTOBER 2014
CASE NO. LC/H/693/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/693/2014

HARARE, 07 & 24 OCTOBER 2014			     CASE NO. LC/H/211/14

In the matter between:-

MERCY CORP							Appellant

And

E. MUDZAMIRI & OTHERS					Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. G. Makings (Legal Practitioner)

Respondent		In default

MAXWELL, J:

Respondents were employed by Appellant on fixed term contracts between 2009 and 2012.  The contracts were renewed on an ongoing basis until 2012.  Appellant is a non governmental organization funded by donors.  It undertakes projects for the good of a particular community, depending on the availability of funding.  Appellant’s contracts with its employees are directly related to the funding and projects that it has on a particular time.  In 2012 the Respondents’ contracts came to an end and were not renewed.  No other persons were employed in their place.

Respondents were aggrieved and referred the issue of unlawful dismissal and underpayments to conciliation.  There was no settlement at conciliation and the matter was referred to arbitration.  The arbitrator dismissed the claim for unlawful dismissal but upheld the one for underpayment.  He found that the Respondents were being underpaid from January 2011 to the date of termination in 2012.  The arbitrator based his finding on Statutory Instrument 192 of 1995.

Aggrieved, the Appellant noted an appeal on 10 March 2014.  The grounds of appeal in summary are;

The honourable arbitrator misdirected himself in law by coming to a        conclusion on facts placed before him that no reasonable man in his circumstances would have come to.  He concluded that the provisions of the as yet unpromulgated Collective Bargaining Agreement for the Welfare and Educational Sector was binding on the Appellant because of the operation of section 82 (i) (a) of the Labour Act.

With respect to the Honourable Arbitrator Statutory Instrument 192 of 1995 is not a basis on which one can argue that wages negotiated by the parties to the NEC can be deemed to be lawfully binding on all employers and employees in the sector as it fell away when the concept of Employment Boards was repealed from the Act.

Respondents opposed the appeal stating that both parties are covered by the Collective Bargaining Agreement for the NEC Welfare and Educational Institutions and as such the Appellant was duty bound to pay the salaries commensurate with the same industry.  Respondents insisted that the parties are covered by Statutory Instrument 192 of 1995.

Appellant submitted that the NEC Welfare and Educational Institutions Sector was formed in 2006.  Soon after its formation a Collective Bargaining Agreement was negotiated and agreed upon.  It was subsequently referred to the responsible Minister for promulgation but was never promulgated.  Appellant further submitted that it was not part of the Employers’ association which negotiated the CBA and is therefore not bound by its terms as it was not promulgated.

The arbitrator clearly stated that Statutory Instrument 192 of 1995 gives guidance for the Welfare and Educational Industry conditions.  This was despite the fact that the Respondents had based their claim on the Collective Bargaining Agreement of 2006.  It is trite that an unregistered Collective Bargaining Agreement is not binding.  See National Railways of Zimbabwe v Gibson Siziba representing Grade 4 and 5 National Railways of Zimbabwe Supervisory Staff  SC-13-2001.

The arbitrator should not have upheld a claim based on an agreement that was not binding on the Appellant.  As a result his decision cannot be supported.  The appeal therefore succeeds.

Accordingly I order as follows

The appeal be and is hereby upheld with costs.

G. MAKINGS, Appellant’s legal practitioners