Tendai H Madzamba v National Foods Limited

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/388/25
CASE NO. LC/H/757/25
ZIMBABWE HELD AT HARARE
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/388/25

CASE NO.	LC/H/757/25

IN THE MATTER BETWEEN:

TENDAI H MADZAMBA	APPELLANT

Versus

NATIONAL FOODS LIMITED	RESPONDENT

24th SEPTEMBER 2025 and 16th  OCTOBER 2025 BEFORE THE HONOURABLE GONESI J

For the Appellant:	J. Mawopa,

For the Respondent:	N. Katsande

GONESI J: This is an appeal in which the following order is sought:

“1. That the determination of the 4th  Stage Grievance Hearing dated 7 July 2025 be set aside and substituted with the following order;

“ a. That the appellant be regraded to a grade commensurate with the supervisory role he was performing OR

b. That the Appellant be paid an acting allowance for the full period during which he was performing the supervisory duties.”

1.  That the appeal succeeds with each party to bear its own costs.”

FACTUAL BACKGROUND

The appellant, before 30 June 2021, was in the employ of the respondent as a Credit Controller based in Bulawayo. On 30 June 2021, the appellant was

formally transferred to the respondent’s Harare office, retaining the position of Credit Controller and reporting to the Finance Manager in line with the revised organisational structure. As part of the restructuring, the appellant was advised that he would assume supervisory responsibilities over the Credit Control team, although the transfer letter did not specify levels, grades, or formal recognition of such responsibilities.

The appellant continued to perform his duties as a Credit Controller, together with some additional tasks reasonably arising from the company’s restructuring. Believing the added responsibilities warranted a salary increase, the appellant lodged a grievance before the Chairperson, asserting that his salary had not been adjusted in light of the additional supervisory duties. The Chairperson dismissed these claims.

GROUNDS OF APPEAL

Aggrieved by the decision, the appellant has noted the present appeal on the following grounds:

“The Chairperson erred by failing to acknowledge that the appellant had been lawfully and legally assigned additional responsibilities, specifically the supervision of the Credit Control Team.

The Chairperson erred by failing to consider the respondent’s obligation to align the appellant’s salary with the actual grade of the responsibilities he was performing, and to make a determination regarding appropriate compensation.

The Chairperson erred by failing to determine an appropriate remedy regarding the unequal distribution of duties within the department.”

PROCEEDINGS BEFORE THIS COURT

At the commencement of the hearing, Ms. Katsande raised two points in limine. The 1st preliminary point was that the 1st ground of appeal attacks the decision on a non-existent basis in that it is alleged that the Chairperson had

failed to acknowledge that the Appellant had been lawfully assigned additional responsibilities. Counsel submitted that the Chairperson acknowledged this fact under the topic “Reporting Structure and Role Clarity.” The allegations were therefore factually incorrect in terms of the record.

The second point in limine was in relation to the third ground of appeal. Counsel contended that the ground was on an issue that was not raised in the court a quo and therefore it could not be raised for the first time during appeal proceedings. In addition, no relief was being sought from it making it academic. For these reasons the court was implored to strike it off.

In relation to the third ground of appeal, counsel submitted that the ground raised an issue that the appellant could not have preserved for an appeal. Ms Katsande argued that it was clear that the charge in relation to unequal distribution of duties was dropped and having dropped the charge, on the 4th grievance, the tribunal did not deal with the issue. It was also submitted that the appellant never sought any relief from the ground and therefore it ought to be struck out.

In response, Mr. Mawopa submitted that the appellant was a self-actor when he drafted the grounds of appeal and hence in the spirit of promoting social justice, the court must condone the error and allow the appellant to motivate the grounds of appeal. It was argued in relation to the third ground of appeal that the issues raised were interconnected in that the appellant, being a credit controller with additional duties not performed by other credit controllers, had to be compensated for the additional duties.

Mr. Mawopa submitted that he was in agreement that the finding in relation to ground one of the appeal was made, however, the basis of the appeal was that the finding did not provide for a remedy.

It is a settled principle in this jurisdiction that points in limine ought to be raised solely  where they are founded upon cogent  legal reasoning and possess  the  capacity  to  dispose  of  the  matter  in  its  entirety.  Procedural

irregularities or technical objections, absent demonstrable prejudice, should not be allowed to obstruct the prompt and, where feasible, cost-effective adjudication of cases on their substantive merits.

In Telecel Zimbabwe (Pvt) Ltd v Potraz and others HH 446-15, MATHONSI J (as he then was) had this to say:

“Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion. A preliminary point should  only be taken where firstly it is meritable and secondly it is likely to dispose  of the matter.”(my emphasis)

In the present matter, it is well settled that the first ground of appeal is misconceived. It impugns the Chairperson’s decision on the basis that there was a failure to recognize the lawful and legitimate assignment of additional duties to the appellant, namely the supervision of the Credit Control Team. However, the record clearly reflects that such a finding was indeed made. Accordingly, the assertion that no such determination occurred is factually inaccurate. In view of this, the first ground of appeal is hereby struck out.

In relation to the second point in limine which is based on the third ground of appeal which states that the Chairperson erred by failing to determine an appropriate remedy regarding the unequal distribution of duties within the department, it is trite to emphasise that an appeal is dealt with on the four corners of the record.

In the case of S v Robert Maphosa HH 323/13, it was stated that,

“From the facts recorded by the magistrate, regarding special circumstances, this court has no basis to interfere with the finding that there were no special circumstances found to be existing․ An appeal is

determined within the four corners of the record.”(my emphasis)

The ground of appeal introduces an issue for determination that was not canvassed before the tribunal a quo. Moreover, notwithstanding its inclusion in the appeal, no corresponding relief is sought in relation thereto. It is a well- established principle that a litigant cannot seek relief on appeal which was not

pursued at first instance. Thus, the Chairperson’s decision cannot be impugned for failing to grant relief that was neither pleaded nor argued before him. Consequently, the ground is struck out.

RULING ON THE PRELIMINARY POINTS

It is the court’s finding that the points in limine raised by the respondent are meritorious and consequently grounds 1 and 3 are struck out of the record.

Submissions on the merits

Mr. Mawopa submitted that the appellant was currently in grade C1 and further that he was not graded in terms of the Collective Bargaining Agreement. Mr Mawopa contended that the appellant had extra responsibilities which were not compensated for. Regarding the assertion that the respondent would pay incentives to employees , Mr. Mawopa submitted that incentives were paid for the whole group of employees, not on individual performance. Mr Mawaopa contended further that with regards to duties, the appellant was doing duties that were different from what was stated in the contract of employment.

Mr. Mawopa submitted that the appellant was not against the transfer but rather was expecting the respondent to recognise the extra duties he was now doing. Mr Mawopa argued further that lateral transfer was supposed to be a transfer on the same terms and conditions that prevailed before the transfer. It was his contention that the chairperson must have made an appropriate ruling that appellant be compensated for the extra duties.

Respondent’s Submission

In response, Ms. Katsande submitted that lateral, in terms of the Cambridge Dictionary, meant sideways and it was distinguished from promotion, which meant upwards. Counsel further submitted that lateral transfer in the case of Love v Electric Power BD of Chattanooga EPB 3rd Fed Epex 405 of the 6th Circuit, the American Supreme Court was defined as a transfer without an increase in pay and benefits. Ms Katsande submitted that in that case it was held that an employee does not suffer adverse action when denied a lateral transfer with no change in terms of compensation.

Counsel argued that in terms of Section 6b (1) of the Labour Act an employee must be paid salaries and wages as agreed yet in casu the appellant failed to negotiate a salary increment with the employer and was now asking the Court to interfere and vary the salary. It was submitted that the dispute was of interest, not of right and the Labour Court does not determine disputes of interest but those of right. Counsel argued further that if the court determined disputes of interest , it would shy away from the trite principle that courts do not create rights and duties for the parties. It was counsel’s submission that the courts only sat to determine rights that were already provided for in terms of the employment contracts, and not varying the contracts between the parties.

Ms Katsande contended that since the appellant was not an NEC graded employee, once he desired to have any changes in his salary and benefits, he was supposed to negotiate with his employer. However, in the event of the employer not acceding to the request, the contract remained lawful as agreed, so argued counsel.

Counsel submitted that the extra duties that were allocated to the appellant were closely related to his duties as a credit controller, the only difference being that appellant was now serving in a supervisory role. Counsel

contended that such was not a promotion and since a promotion was at the

discretion of the employer the appellant was not supposed to have any legitimate expectation. It was the respondent’s prayer that the appeal be dismissed with costs.

Mr Mawopa’s response was that the appeal was filed in terms of the respondent’s grievance procedure and the appellant followed domestic remedies. It was submitted that the Labour Court is the only platform where the unfair labour grievances can be adjudicated. Mr Mawopa submitted that the court was supposed to make a determination on the matter despite it being a dispute of interest as submitted by counsel for the respondent. Upon an inquiry if there was a variation of the contract of employment, it was submitted that there was no variation of the contract of employment, but there were just extra duties. Mr Mawopa went on to submit that  the extra duties were to be reflected in the employee’s wages and salaries and since the appellant was supervising other employees, he was no longer on the same level with them and was supposed to receive compensation.

ISSUE FOR DETERMINATION

Whether or not the Chairperson failed to properly assess and provide an appropriate remedy for the appellant’s assumption of additional responsibilities.

APPLICATION OF THE LAW TO THE FACTS.

Whether or not the Chairperson failed to properly assess and provide an  appropriate remedy for the appellant’s assumption of additional  responsibilities.

The principal issue for determination in this appeal is whether the appellant had a legitimate expectation, arising from his transfer to Harare and the assignment of supervisory responsibilities, that such a change in his employment  status  constituted  a  promotion  or  otherwise  entitled  him  to

enhanced remuneration. The appellant contended that the nature and scope of the additional duties imposed upon him, particularly the oversight of the Credit Control Team, gave rise to a reasonable and justifiable belief that his position had been elevated in rank or grade, thereby warranting an upward adjustment in salary.

In Mudarikwa C & Anor v Director of Housing & City of Harare SC 56/06,

it was stated that,

“In Muwenga v PTC 1997(2) ZLR 483(S) it was held that legitimate expectation to be appointed to a post in which the employee was acting was contingent upon the employee being qualified or arose from  the  contract  of  employment  itself․ It  could  not  be  founded  on

experience alone.”(my emphasis)

A look at the decision of the Chairperson highlights that what transpired between the  parties was a  lateral transfer  which did not in itself  give a reasonable expectation of promotion or reward. It should also be noted that the Chairperson clearly highlighted that the organisational chart had credit controllers reporting to the Finance Manager, confirming that no intermediate “Credit Control Supervisor” position existed. It should also be noted that the Chairperson went on to highlight that the letter’s clause stating that “all your other terms and conditions will remain the same” is unequivocal. The transfer letter also exclusively invited the appellant to engage Human Resources for any clarifications regarding his new assignment, which he did not do.

The letter culminating in the transfer will be reproduced hereunder:

“ Dear Tendayi

RE: LATERAL TRANSFER, HARARE CREDIT CONTROLLER

Further to our engagement and consultation with regards to Credit Control Structure changes, please be advised that you will be transferred to Stirling Site, Harare effective the 1st of July 2021.You shall be reporting to the Finance Manager N.F Wholesale.

You shall have supervisory responsibility on the Credit Control team. Your line manager will provide you with your new terms of reference. All your other terms and conditions will remain the same.

For any clarification of any of the above , feel free to contact the Human Resources.

We wish to thank you for the services you continue to render to the

organisation.”

It is therefore clear that from the onset, appellant knew he was undergoing a lateral transfer with extra duties without a change in salaries and benefits .

It was also stated in the Muwenga case supra that,

“I would merely emphasise, as cautioned by CORBETT CJ [Administrator, Transvaal & Ors v Traub & Ors1989 (4) SA 731(a)], that the need to avoid undue judicial interference in the administration of public authorities must always be placed in the balance․ Indeed, it could be submitted

with some persuasion that the promotion of an employee is a privilege,  left to the discretion of the employer, to be conferred when deemed fit

․ It is not a right that an employee is entitled to claim unless, of course,

his contract of employment so provides.” (my emphasis)

I find the submissions by Ms. Katsande reasonable in relation to the lateral transfer. It is a well-established principle that a lateral transfer does not, in and of itself, constitute a promotion or alteration of the terms and conditions of employment contract. In the present case, the communication effecting the appellant’s transfer expressly stated that it was a lateral transfer within the organisational structure. The appellant acknowledged and accepted the transfer without objection, thereby agreeing to its terms. At all material times, the contractual designation of the appellant remained that of Credit Controller, and the transfer did not purport to amend or vary the substantive provisions of his employment contract. Accordingly, the transfer did not confer

any elevation in rank, nor did it entitle the appellant to additional remuneration or benefits beyond those already stipulated in the existing contract of employment.

It was stated in the case of Fastgrip Investments (Pvt) Ltd v Klipspringer, HB 286-17 that,

“It is a cardinal principle of our law of contract that contracts entered into by parties out of their free will are sacrosanct. ...The doctrine of sanctity of contract stipulates that men and women of full legal capacity and competent understanding are at liberty to contract with one another. When they have so contracted freely and voluntarily, their contracts are held sacred and must be enforced by courts of law who shall not lightly interfere with that freedom of contract. As a matter of public policy, courts of law not only do not interfere with the freedom of the parties to contract as they please as long as the contracts are lawful, they also do not make contracts for the parties but only enforce and give effect to what the parties have agreed to.”

The contract of employment subsisting between the parties remains valid and enforceable, as no formal variation or amendment thereto was effected in accordance with the applicable legal requirements. The appellant’s transfer, which was expressly characterised as lateral, did not alter the essential terms and conditions of his employment, nor did it constitute a promotion in law or fact. A lateral transfer, by its nature, involves a reassignment of duties or location without elevation in rank, grade, or remuneration. In the absence of any express agreement or documented change to the contractual framework, the appellant’s designation and entitlements remained unchanged. Accordingly, the mere fact of reassignment, even with additional responsibilities, does not give rise to a right to increased wages or imply advancement in position.

Accordingly, the appellant’s claim to be regraded to a grade commensurate with the supervisory roles he is performing is without merit and cannot be sustained.

DISPOSITION

In the result, the appeal is dismissed for lack of merit.

Each party to bear its own costs.

Zimbabwe Milling and Allied Workers Union,

Maguchu & Muchada Business Attorneys, respondent’s legal practitioners