Zimbabwe Lawyers for Human Rights v Temba Ananias

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/61/16
HELD AT HARARE ON 19TH OCTOBER, 2015
CASE
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/61/16

HELD AT HARARE ON 19TH OCTOBER, 2015    CASE NO.LC/H/539/14

AND 19TH FEBRUARY, 2016

In the matter between:-

ZIMBABWE LAWYERS FOR HUMAN RIGHTS			Appellant

And

TEMBA ANANIAS								Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Advocate E.T. Matinenga

For Respondent	:	Mr. T.R. Mugabe (Legal Practitioner)

MHURI J.

This is an appeal against an arbitral award wherein Respondent was awarded payment of cash in lieu of leave days and seven-year service gratuity.

Appellant’s grounds of appeal are that:-

The Arbitrator misdirected himself by not meticulously going through the documentary evidence led by Appellant, before awarding a wrong amount of cash in lieu of leave days to the Respondent such a misdirection was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.

The Arbitrator fundamentally misdirected himself at law in awarding a gratuity to the Respondent when it was not due to him, as a matter of law.

The Arbitrator erred in using the formula used in the Collective Bargaining Agreement for the National Employment Council for the Welfare and educational Institutions in calculating yet the Respondent did not fall under this sector.  Such a fundamental misdirection is a misdirection at law.

In deciding the two issues that gave rise to this appeal, the Arbitrator considered the documentary evidence which the parties placed before him.  He considered the case law, Respondent’s Personnel Manual (The Manual) and emails.

In particular, the Arbitrator scrutinised the provisions of the manual relating to leave and gratuity.  It was his finding that the Respondent’s leave policy was poorly managed and short changed certain employees.  He was of the view that if the employees were supposed to carry 30 days and 10 days (professional staff and support staff respectively)and no cash in lieu of leave was paid, any employees who carried a bigger number of leave days, risked having those days forfeited.

Clause 11 of the Manual, provides for leave and in particular sub-clause 1 (f) to (i) are relevant.  Sub-clause (f) reads:-

“For the year 2010 only, professional ZLHR staff will carry over 30 days of accrued leave, and support/administrative staff will carry over 10 days of accrued leave from the previous years only.  These leave days must be used in 2010 failing which they will be forfeited.

(g)	ZLHR personnel, from 1 January 2010 entitled to 30 calendar days vacation leave per year………

(h)	A maximum of 10 days of leave can be carried forward into the following year, and only by personnel who can show good cause……………………… Should this accrued leave not be taken in the year following the year of accrual it will be forfeited.

No cash in lieu of leave will be granted to any ZLHR employee/long-term consultant.

(j)	……………………………………………………………………”

In clause 1 sub clause 1 it is provided that the Personnel Manual governs the relations between Zimbabwe Lawyers Human Rights and its employees.  In sub-clause 2 it is provided that the Manual shall apply to all Zimbabwe Lawyers Human Rights personnel except those contracted on casual or part-time basis.

Respondent was not excluded from the application of the Manual.  He was a Senior Finance Officer and it is common cause that the administration of the leave policy was one of his duties.

In view of clause 1 above, it is without doubt that the Manual was binding between Zimbabwe Lawyers Human Rights and its employees.  It was meant to regulate the working relations between these two parties.  Whilst certain provisions in the Manual could have been unfair in the mind of the Arbitrator, it was not for the Arbitrator to then change the provisions.  I agree with Appellant that if the Arbitrator had meticulously read the Manual he would not have granted Respondent more than 12 days cash in lieu of leave.

Respondent was aware that in terms of the Manual, he could only carry over 10 days into the following year.  If he was aggrieved by the leave policy or any other provision in the Manual, he had the right to pursue the grievance in terms of law instead of waiting until he had resigned.

The observation by the Arbitrator that Respondent had 38 days leave on his December 2010 payslip and only 10 days leave in January 2011, and the question as to what happened to the 28 days carried over, was not warranted in my view, as clause 11 of the Manual is very clear.

As regards gratuity, clause 9.4 (h) of the Manual reads;

“(h)	Lawful terminal benefits which may be due will be processed according to the Labour Legislation, whilst payment of a gratuity to any Zimbabwe Lawyers Human Rights member of staff shall be at the discretion of the Zimbabwe Lawyers Human Rights Board and will be considered on a case–by-case basis.”

It is clear therefore that in terms of the above, gratuity is paid only at the discretion of the Zimbabwe Lawyers Human Rights Board.  It is not payable as a right unlike other lawful terminal benefits.

In casu, Appellant’s Board exercised its discretion and denied Respondent the gratuity.  The Board’s decision can only be impeached if the discretion was not judicially exercised.  Put differently, it must be shown that the Board was irrational in its conduct.

The Arbitrator, in his analysis of the evidence led before him, was of the view that discretion should not be applied in a haphazard and discriminatory manner based on flimsy, hidden criteria.

He found as a result, that Respondent was entitled to his gratuity as Appellant had used its discretion to begrudge Respondent as there was no valid reason proffered.  The Arbitrator rejected the reason given by Appellant that, Respondent had been sucked in a financial scandal.  I find no fault with the Arbitrator’s rejection of this explanation.

The explanation was raised for the first time in the Arbitration proceedings.  It was the unchallenged submission by Respondent that it was raised as an after-thought.

The financial scandal should have been dealt with at the time instead of waiting until the time the gratuity became an issue.  The Arbitrator therefore cannot be faulted for finding that there was no valid reason.  To that end, the Board’s exercise of discretion was properly interfered with.

Having found that Respondent was entitled to a gratuity, the Arbitrator used the formula as provided in the Collective Bargaining Agreement of the National Employment Council for the Welfare and Educational Institutions.  He found the formula under this National Employment Council to be fair reasonable and easy to use.

Appellant takes issue with the Arbitrator’s use of this National Employment Council’s formula in calculating the gratuity.  Appellant does not state which formula was supposed to be used or it used in paying gratuity to other former employees.  Appellant is just making a bald challenge.  The submission that Appellant is a Non-Governmental Organisation (NGO) was not challenged.  The submission that when a matter is referred to conciliation and Arbitration, it is referred to the relevant National Employment Council was equally not disputed.  That being the case the Arbitrator was within his right to use the formula as provided in the Collective Bargaining Agreement of the relevant National Employment Council under which Appellant falls.

To that end therefore the Arbitrator’s finding cannot be faulted.

Appellant is not averse to paying cash in lieu of the 12 days accrued in 2011 before his date of resignation.  12 x $159.09 = $1 909.08.

In the result the appeal partially succeeds.  The award is altered to read:

“1.	The claimant’s claim for a pension payment is hereby dismissed.

The Respondent shall pay the claimant

$1 909,08 as cash in lieu of 12 days.

The Respondent shall pay the claimant

$2 940,00 as gratuity.

Each party shall bear its own costs.”

Gill, Godlonton & Gerrans – Appellant’s legal practitioners

Nyakutombwa Mugabe – Respondent’s legal practitioners