Safeguard Security v Simba Afoso

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/10/14
HELD AT MUTARE 4TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/10/14

HELD AT MUTARE 4TH FEBRUARY 2014	CASE NO LC/MC/30/12

& 28TH FEBRUARY 2014

In the matter between:-

SAFEGUARD SECURITY				Applicant

And

SIMBA AFOSO					Respondent

Before The Honourable E Muchawa, Judge

For Applicant	Mr B.S. Nhepera (Group Human Resources Manager)

with  S Bhebhe (Human Resources Officer)

Respondent			In person

MUCHAWA,J:

This is an appeal against an arbitral award which awarded payment of gratuity, cash in lieu of leave and underpayment of salaries in favour of respondent.

The respondent was initially engaged as a security guard in

September 2006 and thereafter on three months fixed term contracts until June 2012.  The job titles changed at some stages to sergeant major and then inspector.  Respondent’s claim for underpayments is premised on the fact that he was a qualified mechanic who was supposed to be paid in terms of grade 12 of the Commercial Sectors Collective Bargaining Agreement. It was found proven in the arbitral award that respondent was responsible for the repair and maintenance of appellant’s vehicles.  The arbitrator found that the respondent’s action to place applicant in various contracts of employment with grades 8 (sergeant major 2009 – 2011) and grades 10 (inspector 2001 – 2012) instead of placing him in grade 12 (mechanic) as per requirement of commercial industry regulations on classification of occupations grading system, is unacceptable unfair and unjust irrespective of the existence of an  agreement signed as this is against social justice and fairness to one of the parties.

In the appeal before me the grounds are summarised below:

The award of the arbitrator is in conflict with the public policy of Zimbabwe (see article 34 (2) (iii) of the Arbitration Act) in that the arbitrator did not deal with the case submitted to him, in particular he did not determine whether respondent was employed as a motor mechanic or was employed as an inspector.  The award must be final and deal with all matters submitted to the arbitrator.

The arbitrator’s decision on the facts is so grossly unreasonable so that no reasonable arbitrator who could have applied his mind on the facts could have arrived at such a decision.

The parties made lengthy submissions before me with respondent

arguing that the arbitrator had correctly applied his mind to the facts before him.

I now deal with the grounds of appeal in turn.

Ground 1 – N o finding made on whether respondent employed as mechanic

I find no merit in this ground of appeal.  The arbitrator wrote a ten page award and dedicated about half of those to analysing the evidence and arguments.  The section below shows clearly that the arbitrator did decisively determine whether respondent was employed as a motor mechanic or was employed as an inspector, thus bringing finality to the issue;

“It is my considered view that although applicant was initially engaged as  a security guard he later became a mechanic.  On paper (contracts of employment) the respondent is correct about the scope of employment as sergeant major and inspector respectively but on actual grounds the job duties which were being undertaken by applicant were unrelated to the job titles given above ……  An analysis of the jobs differences (sic) will show that the duties which were being performed by applicant are of a higher grade than those in the contract……  As such it is my considered view that on a balance of probability the applicant was a mechanic.”

This ground of appeal is consequently dismissed.

Ground 2 – On the facts thedecision is grossly unreasonable

Appellant referred me to the cases of Stanley Tichazivana v Trojan Nickel Mine Bindura S-56-03, Reserve Bank of Zimbabwe v Granger and Anor S-34-01 and Hama v National Railways of Zimbabwe 1997 (1) ZLR 664 (S) for the assertion that the second ground of appeal, in casu, is a question of law as they are alleging that the arbitrator misdirected himself on the facts before him and made conclusions which were so unreasonable that no sensible person who applied his mind to the facts would have reached such a decision.

The arbitrator considered both written and oral submissions including documentary evidence.  Reference was extensively made to the National Employment Council for the Commercial Sectors of Zimbabwe Collective Bargaining Agreement.  The following facts were found proven:

That though respondent signed fixed term contracts of employment with grades 8 (sergeant major 2009 – 2001) and grades 10 (inspector 2011 – 2012), he was a qualified mechanic who should have been placed in grade 12 as he had proceeded to be employed as a mechanic defacto.

That respondent was therefore entitled to $2 313.00 in underpaid salaries.

That respondent was not entitled to housing and transport allowances from January to May 2012 as the relevant S.I. 76 of 2012 became effective from 1 June 2013.

That respondent was entitled to gratuity amounting to $102.50.

That respondent had accrued 38 days of leave which had not been paid for.  Respondent was therefore entitled to $519.00 as cash in lieu of leave.

It is appellant’s submission that in the face of the 3 monthly contracts

signed by respondent totalling 24 contracts during his period of employment it has unreasonable for the arbitrator to conclude that respondent had been treated unfairly as he had not signed under duress.  It was argued that he was bound by what he signed (see Chawatama v UTC SC 99/1999).  The arbitrator is therefore alleged to have failed to apply his mind to the facts of the case.

Before the arbitrator was the initial application by respondent for employment as a security guard and an unrefuted claim that he was then interviewed by a Mr Kamusono (HR) and Mr Ndega (Senior Mechanic) for the post of mechanic which had arisen.  The conclusions by the arbitrator were reached after analysing the tools of trade produced as evidence, the hours of work and the uniforms.  None of the evidence produced corroborated the duties of either a sergeant major or inspector.  The relevant CBA for Commercial Sectors defines both a sergeant major and an inspector as a uniformed employee who is required to wear an appropriate badge indicating his rank.  The arbitrator relied on the definitions in S.I. 76 of 2012 which also talk of uniformed supervisor.  In casu respondent worked wearing work suits and not uniforms with any badges denoting his rank.

Respondent argued that even though he signed the fixed term contracts, the grade given to him was that below what is stipulated in the CBA and the employer/appellant was contravening section 6 (1) (a) of the Labour Act which provides that no employer shall pay any employee a wage which is lower than that to fair labour specified for such employee by law or any agreement made under this Act.

I cannot fault the arbitrator’s conclusion that the tribunal could not support a contract of employment with misrepresentations prejudicial to one of the parties.  I will in fact go so far as to say that the contract relied on was unlawful as it was going against the law.  In Mutandiro v PTC HH-43-01 it was held that an agreement to ignore the labour laws of the country was invalid.

In the circumstances I find no merit in this ground of appeal.

Consequently I order as follows:

The appeal being without merit is dismissed with costs.