Rumbidzai Malete & 9 Ors v Civil Aviation Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/708/2014
HARARE, 17 SEPTEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/708/2014

HARARE, 17 SEPTEMBER 2014 &		        CASE NO LC/H/1026/2013

24 OCTOBER 2014

In the matter between

RUMBIDZAI MALETE						1ST APPELLANT

And

GIWARD ZANBYJI						2ND APPELLANT

And

BENEDICT SHANGINA						3RD APPELLANT

And

MONICA MATIENGA CHIDAWANYIKA			4TH APPELLANT

And

MARGARET KWANGWARI					5th APPELLANT

And

FLORENCE MATIKA TSIKWA					6TH APPELLANT

And

EDMOND GOMO							7th APPELLANT

And

ELISON MAKOTORE						8TH APPELLANT

And

MITCHELL CHONJA						9TH APPELLANT

And

LANGTON KADZIMWE						10TH APPELLANT

Versus

CIVIL AVIATION AUTHORITY					RESPONDENT

Before the Honourable F C Maxwell

For the Appellant		Mr C Mucheche (Legal Practitioner)

For the Respondent	Mr O J Gasva     (Legal Practitioner)

MAXWELL J:

This is an appeal against part of an arbitral award in favour of the respondent. The appellants were appointed to various acting positions. Section 17 (2) of the governing Collective Bargaining Agreement, SI 55 of 1992 provides:

“(2)	On completion of six consecutive months’ acting appointment, an employee shall be confirmed in that appointment.” (underlining for emphasis).

The appellants have acted for periods beyond the stipulated six months and referred the matter to conciliation. The matter was not settled and was referred to arbitration. The arbitrator dismissed the claim. Aggrieved, the appellants noted this appeal on 12 December 2013. The grounds of appeal are:

The arbitrator grossly erred at law in determining on the question of whether the appellants hold qualifications for the positions in which they were acting in excess of six months when the issue of qualifications was not, referred as a term of reference especially when the arbitrator concedes that the appellants were acting in various positions in excess of six months.

The arbitrator grossly erred at law in making a finding that the respondent does not have to confirm the appellants on a substantive basis when the provisions of the law were couched in the peremptory that if employees are in a post in excess of six months they shall be confirmed in those posts on a substantive basis.

The arbitrator grossly erred on the facts, which misdirection amounts to a question of law and is so outrageous in its defiance of logic and common sense such that no reasonable person applying his mind to the facts would arrive at such a decision, in making a finding that the appellants were not qualified to be confirmed in the posts in which they acted in excess of six months when the question of qualifications was only posed against two of the appellants.

The arbitrator grossly erred on the facts, which misdirection amounts to a question of law is so outrageous in its defiance of logic and common sense such that no reasonable person applying his mind to the facts would arrive at such a decision in making a finding that the appellants were not qualified to be confirmed in the posts in which they acted in excess of six months when there is nothing at law which regulates the so called “prerequisite qualifications” for the various positions that the appellants were acting in excess of six months.

The respondent denied the allegations by the appellants and stated that:

The aspect of qualification cannot be dispensed with, when one is dealing with an issue of confirmation in to a certain job position which has got its own required minimum qualifications. There was no need for the aspect to be referred as an issue, since it was embraced in terms of reference number three, ‘whether or not the claimants should be confirmed on a substantive basis.’ This ground of appeal lacks merit.

The arbitrator correctly awarded that the appellants could not be confirmed into the positions they had acted because they did not possess the required minimum qualifications for the post in question. The arbitrator made a finding that, promotion is a sole discretion of the employer not a right of the employee. It is further denied that all the appellants acted in their erstwhile positions for more than six months.

The appellants failed to demonstrate that they possessed the minimum requisite academic and professional qualification. It is vehemently denied that all the appellants acted for consecutive six months.

The appellants are grossly misdirected at law with regards to the point that they raised, that “there is nothing at law which regulates the so called “prerequisite qualifications.” The discretion solely rests with an employer to determine which minimum qualifications are applicable to a certain or particular post in its organisation.

The respondent had also cross-appealed on the applicability of SI 55/92 but on the hearing of the matter the cross appeal was abandoned. At the hearing of the matter the parties were agreed that the legal issue before the court was the interpretation of section 17 (2) of S I 55 of 1992 as well as clause 10.4.4 of the respondent’s Human Resources Manual. The said clause states:

“10.4.4.	Maximum Acting Period

An employee shall be appointed into an acting position for a period of up to but not exceeding six consecutive calendar months.” (underlining for emphasis)

The appellants argued that section 17 (2) of S I 55/92 is worded in mandatory terms and therefore they should be confirmed in their appointment on completion of six months. They distinguished the cases relied upon by the respondent, Muwengwa v PTC 1997 (2) ZLR 483 and Mudarikwa Anor v Director of Housing & Community Services NO & Anor  SC-78-05. They submitted that in the cited cases the affected employees’ claim for a right to promotion was not backed by any legal authority but was simply derived from being in an acting capacity for any given period. The appellants submitted that in casu the legal right derives from section 17 (2) of SI 55/92 as well as clause 10.4.4 of the respondent’s Human Resources Manual. The appellants also referred to section 82 (1) (a) of the Labour Act [Cap 28:01]. The said section provides that:

“82	Binding nature of registered Collective bargaining agreements

Where a collective bargaining agreement has been registered it shall-

With effect from the date of its publication in terms of section eighty-five, or such other date as may be specified in the agreement, be binding on the parties to the agreement, including all the members of such parties, and all employers, contractors and their respective employees in the undertaking or industry to which the agreement relates;”

The respondent on the other hand argued that section 17 (2) of S I 55/92 should not be read in vacuum. It submitted that that section should be read to mean that an employee who meets the minimum qualification requirements will accrue a right upon having served in an acting capacity for six months. It further argued that the law does not seek to create an absurd scenario where a person who is not qualified for a certain post is appointed to that post on the basis that he would have acted in a certain position for six months. It submitted further that the cases of Muwenga v PTC (supra) and Mudarikwa & Anor v Director Housing & Community Services N O & Anor (supra) are applicable as they aptly capture the spirit in which the law should be read in.

It is common cause that in both S I 55/92 and the respondent’s Human Resources Manual the word “shall” is used. The appellants made reference to the case of Doctor Daniel Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC-11-08 where it was held that the use of the peremptory word shall as opposed to may is indicative of the legislature’s intention to make the provision peremptory. The arbitrator suggests that a strict adherence to the plain ordinary grammatical meaning of the word would lead to an untenable and absurd situation. He states that in his mind the legislative intent is not to leave section 17 unqualified. He goes further to state that:

“It is without doubt the true purpose and intention of section 17 is to prevent an unscrupulous employer from making a well experienced and qualified employee work on an acting basis for a long period of time without being promoted on a substantive basis and at times, have someone appointed to that post in his or her stead” (page 3 of award)

I would borrow the arbitrator’s words and state that it is also the purpose of section 17 to prevent unscrupulous employers from appointing unqualified employees to act in positions they are not eligible for substantive appointment. As stated by the arbitrator on page 5 of the award, the respondent is supposed to ensure that whoever is made to act on a post is qualified and suitable for appointment on a substantive basis. I agree with the arbitrator that it is absurd for an employer to appoint on an acting basis someone whom it does not have faith in, to act for a period in excess of six months. The Collective Bargaining Agreement and the Human Resources Policy were crafted to promote fairness and social justice in the work place, in line with the Labour Act [Cap 28:01]. The respondent is therefore correct that the law does not seek to create an absurd scenario where a person who is not qualified for a certain position is appointed to that post on the basis of having acted in that post for six months. The absurdity is not created by the law but by the respondent itself. If it had given due consideration to the Collective Bargaining Agreement and the Human Resources Manual, it would have appointed persons qualified for appointment to substantive post to act before the posts are substantively filled.

It is trite that promotion of an employee is a privilege left to the discretion of the employer. It is not a right of an employee which he or she is entitled to claim. However in the circumstances of this case I am convinced that the privilege and discretion is exercised prior to appointment to an acting position. I am also convinced that the question of academic and professional qualifications for a post in the circumstances of this case applies at the stage at which one is appointed to an acting position. The Collective Bargaining Agreement and the Human Resources Manual in casu take away that privilege and discretion once one is appointed to an acting position.

The cases cited by the respondent do not refer to any obligation imposed on the employer to appoint an acting person substantively. In Muwenga v PTC (supra) the following statements appear:

“Indeed, it could be contended with some persuasion that the promotion of an employee is a privilege, left to the discretion of the employer. It is not a right an employee is entitled to claim, unless his contract of employment so provides.” (underlining for emphasis).

In the case of Mudarikwa & Anor v Director Housing & Community Services N O & Anor (supra) the following statements are instructive:

“It is elementary that no one can be directed by an order of a court to do something which he or she is not under a binding obligation to do. … The court would in the circumstances be promoting the employees as its order would be the source of the binding obligation not imposed on the employer by law.” (underlining for emphasis)

From the quoted statements it is clear that a contract of employment can create an obligation for an employer to promote an employee. In my view the circumstances of this case are such that the respondent is under an obligation to promote whoever is in an acting position once six months have expired. The source of the binding obligation imposed on the employer by law is section 17 (2) of S I 55/92 and clause 10.4.4. of the Human Resources Manual. The appellants’ argument is therefore with merit on this basis.

I therefore find that the arbitral award cannot be supported and the appeal must succeed.

Accordingly I order as follows:

The appeal be and is hereby upheld with costs.

The arbitral award be and is hereby set aside and substituted with the following:

The claim succeeds. The respondent be and is hereby ordered to confirm each claimant on a substantive basis in the post he/she was acting in from the date of completion of six consecutive months.

The respondent be and is hereby ordered to pay claimants’ arrear salaries and benefits from the time each acted in excess of six months.

The parties are to agree on the quantification of the arrear salaries and benefits within 30 days of this order failing which either party may approach the Labour Court for quantification.

Matsikidze & Mucheche, appellants’ legal practitioners

Chirimuuta & Associates, respondent’s legal practitioners