Mouline Gomendo v Paramount Garment Works

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/425/13
HELD AT HARARE 27 JUNE 2013 AND
CASE NO LC/H/882/12
13 SEPTEMBER 2013
JUDGMENT NO LC/H/425/13
---------




IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/425/13

HELD AT HARARE 27 JUNE 2013 AND	   CASE NO LC/H/882/12

13 SEPTEMBER 2013

In the matter between:-

MOULINE GOMENDO				Appellant

And

PARAMOUNT GARMENT WORKS		Respondent

Before The Honourable G Mhuri, Judge President

Appellant			In person

For Respondent 		Mr Makorie (Legal practitioner)

MHURI, G:

The two grounds of appeal upon which this appeal is based are that:-

The Honourable Arbitrator misdirected himself which  misdirection amounts to a point of law in his analysis of the facts thereby dismissing Appellant’s claim for Marker-in 1 grade 5 when Appellant was employed by Respondent as such

The Honourable Arbitrator erred on a point of law in his analysis of the facts by dismissing the Appellant’s claim of the contra preferentem rule which is a trite principle of our law.

A brief factual background was that in June 2008

Appellant was engaged by Respondent as a checker on 7 seven weeks contracts.  In August 2008 with the approval of the Managing Director she was elevated from checker to marker-in 2 grade 4. (Record page 21 & 22)  Respondent kept on renewing Appellant’s contract on the same terms and conditions.

In March 2010 Respondent computerised its record keeping system.  It is on the contract form for the period 15 March 2010 to 30 March 2010 that it was typed “Grade 4 Marker 1”.

Despite this change, Appellant’s terms and conditions of Marker-in 2 grade 4 did not change.  Exhibit 1 which was produced in this Court, shows that Appellant was earning a Marker-in 2 grade 4 salary until 8 October 2010 the date of termination of her contract.

In July 2010 an application was made to the Managing Director for Appellant’s upgrading from Marker-in 2 GRADE 4.  The application was turned down by the Managing Director on the ground that there was no change in Appellant’s duties.

It was Respondent’s argument that it was a typographical error to indicate on the contract form that Appellant was a MARKER IN 1 grade 4 employee.  It based its argument on the ground that despite the fact that the Appellant signed this particular contract form she still went ahead to apply for upgrading which application was turned by the Managing Director, and also that Appellant was still doing the same duties of Marker-in 2 grade 4 and getting the same salary.  It argued therefore that it was not its intention to elevate Appellant to Marker-in I.

The Collective Bargaining Agreement for the Clothing Industry S.I. of 1999 shows that Marker-in 2 is in grade 4 (iv) and Marker-in 1 is in grade 5 (v).  Marker-in 1 grade 5 is senior to marker-in 2.  The salary is completely different.

Marker-In 2 is defined as:

“marker-in (2) including learner marker-in” means an employee who traces and prepares from a set of graded patterns, a master lay prior to cutting and chopping out, with the assistance of miniaturised lay, predetermined diagrams or photographs;

and

Marker-In 1 is defined as:

“marker-in (1) including learner marker-in” means an employee who arranges and prepares from a set of graded patterns, a master lay prior to cutting and chopping out, without the assistance of miniaturised lay, predetermined diagrams or photographs;

In July 2012 the Acting Senior Designated Agent

of the Industry made some investigations into the Appellant’s grading.  His findings as contained in his report were that Appellant was performing the duties of a marker-in 2 which according to the Collective Bargaining Agreement is an employee who traces and prepares from a set of graded patterns, a master lay prior to cutting and chopping out, without the assistance of miniaturised lay, predetermined diagrams or photographs, so is a person who cannot do marking from a sketch without any assistance mentioned above.  Appellant was therefore a marker-in 2 grade (iv) and was paid accordingly.

On the 23 September 2012, Respondent through its official Mr J Sibanda wrote and placed before the Arbitrator its position with supporting documents on the upgrading issue as raised by Appellant.  (Record page 17).  He stated the company procedures which are followed when one is to be upgraded, vis, that a prescribed form is filled in, stating the recommendations and is submitted to the Managing Director.  The Managing Director considers the application and approves if the employee is to be upgraded.  No upgrading is done without prior approval by the Managing Director.

It was not in dispute that this is the procedure to be followed.  Filed of record are the relevant forms, firstly when Appellant was upgraded from checker to Marker-in 2 in 2008, secondly when Appellant wanted to be upgraded from Marker-in 2 to I grade 5 (v) in July 2010.

The first application was approved but the second was declined.

It was not in dispute that all along, before computerisation i.e. when the contract forms were being manually filled in, the position Marker-in II and grade 4 (iv) never changed.  It was only after Respondent had computerised that there was this change.  In view of all the above, I find that the Arbitrator was correct in finding that it was a typographical error done at the time Respondent changed systems (from manual to computerisation).

I do not believe that Appellant should have benefited from this error.  The contra preferentem principle would not apply in casu.  I am pursuaded in this view by the fact that after the “change” in the position, there was no change in her salary.  After the “change” Appellant applied for upgrading instead of asserting that the new position be effected

“...the rationale of the contra preferentem rule is simply that, if that wording is incurably ambiguious its author should be the one to suffer because he had it in his power to make his meaning plain.”

Christe, Law of Contract in South Africa, Butterworhts 3rd edition at page 246.

The Arbitrator noted that Appellant had agreed that the “change” was a typographical error.  He rejected, correctly in my view Appellant’s insistence that the error by Respondent should be visited on the Respondent.  A similar error in the date of signature by Mr Dutoit was noted on the upgrading authorisation form of the 7 August 2008 wherein Mr Dutoit endorsed the date as 30 July 2007 when at that date Appellant had not yet been engaged by Respondent. Appellant acknowledged that it was an error but submitted that she would not insist on applying the preferentem principle on this error.  This other error on the date goes to show, as found by the Arbitrator, that an employer is not infallible, as such the principle cannot be applied whenever the employer has made an error.

Further Respondent’s intention is clear from the events alluded to earlier.  There is no ambiguity in the Appellant’s contract of employment which would require the application of the principle.

To that end I find that the Arbitrator correctly analysed the evidence before him and did not misdirect himself on the facts and law.

Accordingly this appeal must fail.

It is therefore ordered that the appeal be and is hereby dismissed.

Coglan, Welsh & Guest, Respondent’s Legal Practitioners