National Foods Limited v Tendai Bonde

### Preamble
Judgment No. SC 65/20
1
Civil Appeal No. SC 454/18
DISTRIBUTABLE (82)
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DISTRIBUTABLE   (82)

NATIONAL     FOODS     LIMITED

v

TENDAI     BONDE

SUPREME COURT OF ZIMBABWE

GARWE JA, BHUNU JA & MAKONI JA

BULAWAYO: 27 MARCH 2020

S. Chamunorwa, for the appellant

Respondent in person

BHUNU JA:  This is an appeal against the whole judgment of the Labour Court.  In its judgment the court a quo found that the appellant had discriminated against the respondent by not granting him a 50 percent salary increase following a job evaluation exercise.

It determined that the discrimination was in contravention of s 5 (2a) of the Labour Act [Chapter 28:01].  In consequence thereof the court a quo upset the decision of the Appeals Committee to the contrary and awarded the respondent a 50 percent salary increment backdated to 1 February 2014.

POINTS IN LIMINE

At the commencement of the appeal hearing before this Court both parties raised various points in limine.  Following a brief discussion of the demerits of deciding labour matters on technicalities both parties elected to abandon their respective points in limine and opted to have the appeal determined on the merits.

THE BRIEF SUMMARY OF THE CASE

The facts giving rise to the appeal are largely common cause.  They may be summarised as follows:

The respondent was employed by the appellant as a Laboratory Technician and Quality Controller.  Sometime in December 2013 the appellant embarked on a job evaluation exercise of all its non-NEC employees including the respondent.

Following the completion of the job evaluation exercise, the respondent was notified by letter dated 21 July 2014 that he had been placed in grade C.  He acknowledged receipt of the letter by signing it.

The respondent was later served with a follow up letter giving him details of his remuneration and pay zones.  He however refused to sign in acknowledgement of receipt in protest against the paucity of his pay package compared to some of his colleagues.  He later took up his grievances for resolution in terms of the appellant’s registered Code of Conduct.

THE RESPONDENT’S GRIEVANCES

The respondent raised six grounds for his grievance which he pursued for resolution through the domestic remedies provided by the National Foods Ltd registered Code of Conduct up to the Labour Court.

The basis of his grievances may be summarised as follows:

1.	That the appellant had discriminated against him in contravention of section 5 (2a) of the Act.

2.	That the appellant had violated his Labour rights in contravention of section 65 of the Constitution.

3.	That the appellant had violated section 22 of the company policy.

4.	That the appellant had violated the negotiating work platform.

5.	That the appellant was in contempt of an extant order of the court a quo which ordered that he be paid the salary increase.

6.	That when he raised this grievance he was transferred from the milling division to the stock feeds division.

The appellant denied all the allegations levelled against it by the respondent.  It maintained its defence that it carried out a proper job evaluation exercise that classified the respondent as falling under grade C.  The respondent was therefore correctly remunerated according to his grade.

THE ISSUES

The appellant’s grounds of appeal raise one cardinal issue for determination.  That issue is whether the appellant discriminated against the respondent in violation of section 5 (2a) of the Act by not awarding him a 50 percent salary increase.

The respondent’s case is premised on the fact that other technical staff performing work of equal value were awarded a 50 percent salary increase which he did not get.  On the other hand, the appellant denied that he performed work of equal value as those employees awarded the 50 percent salary increase.

ANALYSIS OF EVIDENCE AND FACTUAL FINDINGS

The respondent’s evidence is to the effect that he was employed as a Laboratory Technician and Quality Controller.  He is the holder of a Diploma in Applied Science acquired from Harare Polytechnic.  He has 20 years’ experience.

When his colleagues were given a 50 percent salary increase to his exclusion, he raised a grievance in terms of the Appellant’s Registered Code of Conduct.  The dispute was resolved in his favour at the third stage but the appellant did not comply opting to take the matter to the court a quo on appeal and ultimately to this Court.

It was his testimony that there are eight Laboratory Technicians doing exactly the same job.  The other technicians got the 50 percent salary increase but he did not.

The appellant disputed the respondent’s entitlement to the salary increase and explained that the 50 percent salary increase was meant for critical staff, a criteria which the respondent did not meet.  Hence his exclusion from the increase.

Ms Chipo Nheta, the Managing Executive and Head of the Maize Division, testified without contradiction before the grievance committee as to the criteria used to award the 50 percent salary increase.  It was her testimony that the 50 percent salary increase was a retention strategy meant to stem the flight of critical staff to their competitors.

The increment targeted millers whose skills were vital and in short supply.  Some of them had been sent to Switzerland for specialised training at great expense to the appellant.

Despite having pontificated at every stage of his case that he performed work of equal value to those awarded the increase, before us, the respondent confessed that millers, sent abroad for training, had superior skills to his.  He openly admitted that he did not deserve to earn the same salary as them.  That concession shook the foundation of his claim.  His transfer from the milling division to the stock division was therefore merited in that he lacked the specialised skills in the milling division.

Having made that damning concession he was then taken through the seven employees he claimed performed work of equal value to verify the truth of his allegations.  For instance:

1.	Beauty Mushure.  Under cross-examination before the grievance committee the respondent said that she was an accountant undergoing a degree programme.  It is obvious that her qualifications and nature of her job are different from those of the respondent.

2.	Panganai Matiro.  The respondent stated that this employee has a Diploma in Laboratory Technology.  He does not know his salary. He heard that he earns $1 200.00 but was not certain of this.

3.	Nyasha Mutira.  The respondent testified that this employee has a degree in Food Science.  He earns around $1 200.00.  The respondent had asked him and was told that he (Nyasha Mutira) earns that much.  However, he does not know whether the figure is true.  The employee obviously has higher qualifications than the respondent.

4.	Karau Karau.  He does not know anything about this lady apart from the fact that she holds a Diploma in Laboratory Technology.

5.	Felistus Mandipa.  The respondent disputed that this lady was employed as a supervisor in grade C U at the time he left the appellant’s employment.  He however stated that he did not know the capacity in which she was employed at the material time.

6.	Kamera.  The appellant said she was employed as an Executive Secretary to the Group Financial Director, a grade higher than his.  This employee was obviously not part of the technical staff.

The respondent was quizzed under cross-examination before the grievance committee whether he verified his information before raising his grievance.  His response was that he did not for fear of victimization.

What therefore emerges quite clearly is that the evidence he presented as fact is based on mere speculation and conjecture.  He therefore raised his grievance without concrete evidence.

APPLYING THE LAW TO THE FACTS

Section 5 (2a) of the Act he relied upon provides as follows:

“No employer shall fail to pay equal remuneration to male and female employees for work of equal value.”

It appears on the face of it that the section was primarily meant to prohibit gender based salary discrimination for equal work.  The mischief being that historically prior to independence women used to earn less salaries and wages than men for equal work.

The respondent however sought to give the section a wider meaning encompassing a prohibition of any form of salary discrimination for equal work regardless of gender.

Considering the modern trend and rallying cry for equal pay for equal work, I am inclined to agree with the respondent.  The courts ought to give the section a wider purposeful interpretation in the interest of justice and equity among all workers regardless of gender.

This is in line with the purpose of the Labour Act which is to advance social justice and democracy in the workplace as provided for under s 2A.

Undoubtedly the onus was on the respondent to prove on a balance of probabilities that he was performing work of equal value as that performed by his colleagues who got the 50 percent salary increase.

The question to be answered is therefore, whether the respondent adduced sufficient credible evidence to prove on a balance of probabilities that he provided work of equal value as those who got the 50 percent increment.

The answer should definitely be in the negative.  As demonstrated elsewhere in this judgment, the respondent confessed that, apart from mere speculation and conjecture, he has no concrete evidence tending to show that he provided work of equal value as those who got the 50 percent salary increase.  He further conceded that he does not know for certain whether those employees he alleged had been awarded the salary increase had in fact been awarded such increase.

The respondent also sought to rely on s 65 of the Constitution to advance his case.

However, it is trite that the doctrines of constitutional avoidance and ripeness militate against invoking the constitution when subsidiary legislation is capable of providing a remedy.   In this case there was no need to resort to s 65 of the Constitution when the Labour Act provided an effective remedy under s 5 (2a) of the Act.  The court a quo’s reliance on            s 65 of the Constitution was therefore misplaced and a misdirection.

By the same token reliance on international statutes is inappropriate and superfluous when domestic remedies are equally effectual.  International law is only relevant to clarify the law where local law is not clear or where there is a lacuna in the law.  In this case our law is clear and unambiguous.

Section 25A (5) of the Act entitles the employer to restructure the mode of running its business.   It is trite that the employer decides how his work is to be done.  For that reason, the appellant was within its rights in devising a scheme to retain critical staff.  The concept of skill retention schemes is not peculiar to the appellant.  It is a strategy common in employment circles as a management tool.  Employees seeking to benefit from any retention scheme must therefore meet the employer’s retention criteria.

DETERMINATION

In this case the respondent demonstrated through his own evidence that he did not satisfy the appellant’s retention criteria.  For that reason, he did not qualify for the                     50 percent salary increase retention scheme.

The learned Judge in the court a quo therefore fell into error and grossly misdirected herself when she found against the grain of evidence that the respondent qualified for the appellant’s retention scheme.  That finding disposes of the respondent’s grievance as baseless.

That being the case, the appeal can only succeed.

Costs follow the cause.  There is no basis for granting costs at the punitive scale as prayed because the respondent had an arguable case.

It is accordingly ordered that:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo be and is hereby set aside and substituted with the following order:

“The appeal is allowed with costs”

GARWE JA				I agree

MAKONI JA 			I agree

Calderwood, Bryce – Hendire & Partners, appellant’s legal practitioners