University of Zimbabwe v Lovemore Madakuenda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/452/14
HARARE ON 7th JULY, 2014
CASE NO. LC/H/838/2013
And 18TH JULY 2014
JUDGMENT NO. LC/H/452/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/452/14

HARARE ON 7th JULY, 2014				     CASE NO. LC/H/838/2013

And 18TH JULY 2014

In the matter between

UNIVERSITY OF ZIMBABWE			–	Appellant

And

LOVEMORE MADAKUENDA			–	Respondent

Before The Honourable Manyangadze, J.

For the Appellant	: Mr. R.M. Dhaka (Legal Practitioner)

Respondent		: No Appearance

MANYANGADZE J.

This is an appeal against an Arbitral Award granted by Honourable T.S. Makamure on 26th September, 2013. In terms of the award, Appellant was ordered to pay Respondent an acting allowance for the period Respondent held the post of Acting Chief Technician.

On the date of hearing, Respondent was in default despite having been duly served. The hearing proceeded on the merits in terms of Rule 30(a) of the Labour Court Rules, Statutory Instrument 59 of 2006.

At the conclusion of the hearing, I allowed the appeal and indicated that my reasons will follow. These are they.

The facts of the matter are that the Respondent is employed by the Appellant as a Senior Technician in the Department of Electrical Engineering. From 2008, the Respondent held the post of Acting Chief Technician. He held the post for a period of 5 years, during which he was not paid an acting allowance for carrying out the duties of a Chief Technician. He lodged a complaint of unfair labour practice with the Labour Office. Conciliation failed and the matter was referred for compulsory arbitration. This resulted in the arbitral award in which it was ruled that the Respondent should be paid an acting allowance.

From the papers filed of record, and the Appellant’s submissions at the hearing of the matter, 3 issues emerged. These are;

Whether the Respondent is entitled to an acting allowance in the absence of a provision in the contract of employment entitling him to such an allowance.

Whether the conduct of the Respondent’s Head of Department constituted a contract imposing rights and obligations between the Respondent and the Appellant in respect of the acting allowance.

Whether the arbitrator could issue an order for payment of an acting allowance without any quantification of the same.

On the first issue, it is not in dispute that the Respondent’s contract of employment does not provide for the payment of an acting allowance. In other words, there is no clause in the contract of employment entitling the Respondent to an acting allowance.

The Court was referred to the case of Art Corporation Ltd vs. Moyana 1989 (1) ZLR 304 (SC), in which it was held that Mr Moyana had to show the contractual provision upon which his claim for an acting allowance was based.

It seems to me the law is clear on this issue. There has to be a contractual basis for Respondent’s claim for an acting allowance. No such basis has been shown to exist. The Respondent, in his response to the grounds of appeal, argued that it does not require to be stated in the contract that he be paid for carrying out additional superior duties. This is in contrast to the position enunciated in the Moyana case, supra.

On this basis alone, the Respondent’s claim for an acting allowance cannot be upheld.

What then was the basis upon which the arbitrator awarded the Respondent an acting allowance?

The answer to this question is found in the remarks by the Arbitrator;

“In this particular case the Head of Department where the service was provided alludes to the fact that the Claimant must be paid an acting allowance. In the Respondent’s submission page 4 and I quote. “The duties of members shall be such as may be assigned to them by the Vice Chancellor through the Head or Chairman of Department”. This implies that the Claimant was assigned to undertake the duties of Chief Technician. In essence this act or conduct by the Chairman of the department conferred a contractual obligation on the Respondent to remunerate the Claimant as per their terms and conditions of service for full time staff other than Academic Staff and Research Fellows”.

From these remarks, it is shown that the Chairman of the Department where Respondent works, has authority to assign him duties. That is natural, as the Chairman, being Head of Department, is Respondent’s supervisor. It cannot, however, be stated that the allocation of duties and supervision of the Respondent by the Head of Department confers on the latter authority to create contractual obligations on issues of remuneration. That is the prerogative of the employer. Indeed, correspondence on record shows that the Head of Department had to seek authority on such matters.

The Court was referred to some memoranda written by the Head of Department, Engineer G. Kapungu, addressed to the Senior Assistant Registrar Technical and Clerical Staff. The memorandum written on 17th August 2011 states:

“RE: REQUEST FOR PAYMENT OF ALLOWANCES MR L. MADAKUENDA

The abovenamed is a senior technician in the department. He has been acting chief technician since the year 2008. The department is kindly requesting payment of a responsibility allowance to Mr Madakuenda.”

Another one was written on 23rd August 2011 and states;

“RE: REQUEST FOR APPOINTMENT OF ACTING CHIEF TECHNCIAN: MR L.

MADAKUENDA

Mr L. Madakuenda, a senior technician in the department, has been acting Chief Techncian since 2008. The department is kindly requesting you to formally appoint him acting Chief Technician so that he can also be afforded an acting allowance”.

The first memorandum clearly indicates that the Chairman was submitting a request on behalf of the Respondent, for him to be paid an acting allowance. He therefore had no such authority. There is no correspondence indicating that this request was accepted or approved by the University authorities i.e. the Vice Chancellor’s Office or the specific office to which it was addressed, the Registrar’s Office. This approval would have, in my view, created a contractual obligation between the employer and the employee over the payment of the acting allowance.

The second memorandum even weakens Respondent’s case further. It is a request to have Respondent formally appointed Acting Chief Technician, so that he can also be afforded an acting allowance. This implies that the basis upon which the earlier request could even be considered had not been established yet.

From this correspondence, there is no way one can infer that the departmental head had the mandate to create contractual obligations between the Respondent and the Appellant. He had to seek the necessary authority to do so. As much as one might sympathize with the Respondent for the additional duties he was made to carry out, there was no contractual obligation on the Appellant to pay him the acting allowance.

On the basis of the first two issues, the Respondent’s claim for an acting allowance cannot succeed. In view of this, I find it unnecessary to look into the third issue i.e. whether or not the order for payment of an acting allowance was proper in the absence of quantification clearly indicating its calculation. There is, in my view, no need to go into this question if it has been clearly shown that there was no legal basis for holding that Respondent was entitled to an acting allowance.

In the circumstances, it is ordered that;

The appeal be and is hereby allowed

The arbitral award issued in favour of the Respondent on 26th September 2013 be and is hereby set aside

The Respondent shall pay the costs of suit.

Ziumbe and Partners – Appellant’s legal practitioners