T Makahamadze & L Vengai v Plastic Star Trading

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/24/16
HELD AT HARARE 14TH JANUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/24/16

HELD AT HARARE 14TH JANUARY 2016			CASE NO LC/H/649/15

& 22nd JANUARY, 2016

T MAKAHAMADZE						1st Appellant

L VENGAI							2nd Appellant

PLASTIC STAR TRADING					Respondent

Before The Honourable G Musariri, Judge

For Appellants		Mr C Muchichwa, Unionist

For Respondent		Mr S Marozva, Officer

MUSARIRI, J:

On 19 June 2015 at Harare, Arbitrator M Dangarembizi made an arbitration award.  He dismissed appellants’ claims of underpayment by their employer, the respondent.   Appellants then appealed to this court against the award.  Respondent opposed the appeal.

The grounds of appeal were four-fold as follows,

“1.	The Honourable Arbitrator erred and misdirected himself at law when he failed to appreciate  that the evidence brought before him by the respondent was not sufficient enough to conclude that appellants’ claims were devoid of merit.

2.	The Honourable Arbitrator erred and misdirected himself at law when he held that it was not his prerogative to determine whether the appellants were Grade B1 or A3 employees.

3.	The Honourable Arbitrator erred and misdirected himself at law when he made a finding that the claimants were not underpaid or owed overtime on the basis of a withdrawal by the majority of the claimants of their case when there was proof before him that the claimants were being underpaid and owed overtime.

4.	The Honourable arbitrator erred and misdirected himself at law when he failed to indicate the appropriate remedy to the claimants after dismissing their claims a  point which constituted one of their terms of reference.”

At the hearing in this court appellants abandoned the 4th ground of appeal.  In addition they conceded that they got US$25.00 for each Saturday they worked which covered their claims for overtime.  That left only the 1st and 2nd grounds of appeal.  The two are intertwined and accordingly I will treat them as one.

The basic issue was whether appellants were wrongly graded by respondent as A3 employees instead of B1.  Appellants based their case on the provisions of the Collective Bargaining Agreement: Plastic Industry S.I. 107/14 (hereafter called “the CBA”).  The CBA classes Machine Operator under Grade A3 whilst Machine Setter is classed under Grade B1.  A Machine Setter is defined thus,

“means an employee engaged in setting up any machine used for manufacturing products.”

Machine Operator is defined as,

“an employee engaged in the operation of any machine used in manufacturing of plastic, foam rubber and fibreglass products by switching it on an off and recording input/output and doing minor adjustments and also trimming of the products.”

In their written and oral submissions appellants did not detail how they qualify as setters.  They seemed to rely solely on the definition in the CBA.  Their argument was apparently that because they adjust the machines, they therefore qualify as setters.  This ignores the definition of an Operator’s duties which includes minor adjustments of the machines.  Respondent submitted they did not have, in their structure, a position in level B1.  They further explained that such is a skilled position involving the setting up of the machines according to technical specifications beyond the ken of ordinary operators.  Such employees were required in larger operations with bigger machines unlike theirs.  I am satisfied with respondent’s explanation.  It ties in with the CBA’s differentiation of the duties of an Operator and those of a Setter.  On that basis I find no cause for upsetting the arbitration award.

Accordingly it is ordered that,

The appeal be and is hereby dismissed; and

The arbitration award issued by Arbitrator M Dangarembizi

dated 19 June 2015 is upheld.

G MUSARIRI

J U D G E