Tsitsi Bwanya & 21 Others V Scientific & Industrial Research AND Development Center (Sirdc)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/490/2016
HARARE 18 JULY 2016
CASE NO. LC/H/231/14
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/490/2016

HARARE 18 JULY 2016				       CASE NO. LC/H/231/14

AND 19 AUGUST 2016

TSITSI BWANYA & 21 OTHERS					Appellants

SCIENTIFIC & INDUSTRIAL RESEARCH				Respondent

AND DEVELOPMENT CENTER (SIRDC)

Before The Honourable G. Musariri, Judge:

For Appellants 		Mr G. Koroka, Unionist

For Respondent		Mr L. Mazhawidza, Officer

MUSARIRI, J:

On 13th February 2014 at Harare, Arbitrator M. Dangarembizi issued an arbitration award.  In terms thereof he dismissed Appellants’ claims against Respondent.  Appellants then appealed to this Court.  Respondent opposed the appeal.

The grounds of appeal were two-fold as follows,

“1.	The Arbitrator erred by claiming that the Labour Act cannot override a clause in the Statutory Instrument which is inconsistent with it until it is repealed and registered with Section 82 of the Labour Act.

The S.I. of Agriculture 393 of 1993 provides that the Agreement or allowances shall not apply to contract employees.  This clause contravenes the Labour Act Chapter 28:01 Section 5 (Protection of employees against discrimination)

No employer shall discriminate against any employee or prospective employee on grounds of race, tribe, place of origin, political opinion, colour, gender, pregnancy, Hiv/Aids status or, subject to the Disabled Persons Act [Chapter 17:07], any disability referred to in the definition of disabled person in the Act, in relation to –

(iv)	the determination or allocation of wages, salaries, pensions, accommodation, leave or such other benefits; or

The inconsistence between the Labour Act and the Statutory Instrument means the Act takes precedence over the Statutory Instrument as the code cannot be superior to the provision of the act which it is registered.  Section 2A (3) of the Act (Purpose of the Act) states

(2) 	This Act shall prevail over any other enactment inconsistent with it.”

Appellants’ case was not explicitly set out in their papers.  However it appears that amongst other claims they claimed certain allowances from the Respondent, their ex-employer.  The Arbitrator ruled that they were not entitled to the allowances.  This was on the basis that as contract employees, Respondents were not entitled to the benefits.  The Collective Bargaining Agreement (CBA) S.I. 323/93 specifically excluded contract workers from those entitled to the allowances.  Appellants sought to argue in this Court that such exclusion is ultra vires the provisions of section 5(1) of the Labour Act Chapter 28:01 (hereafter called the Act).

Section 5 (1) of the Act prohibits discrimination on specified grounds.  These are out in the quotation above taken from Appellants’ grounds of appeal.  The grounds include race, tribe, gender, colour or creed.  There is no mention of “contract workers” as persons protected from discrimination.  Yet Appellants are effectively alleging discrimination against them as contract workers.   They are not covered by the Act which they sought to rely on.  In any event I find no contradiction between the Act and the CBA.  I consider their provisions as consonant rather than contradictory as alleged.

Appellants also sought to reopen the issue of their alleged dismissal.  That issue was not raised in their Notice of Appeal.  The 1st sentence in the notice challenged only the decision “to throw away the request by Appellants to be paid allowances.” In any case Respondent showed that Appellants through their erstwhile representative conceded at conciliation that they had no valid claim on that point.

All in all I consider that the appeal lacks merit and perforce needs be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

The arbitration award issued by Arbitrator M. Dangarembizi dated 13th February 2014 is upheld.

G. MUSARIRI

J-U-D-G-E