Alex Mandishora & 464 Ors v National Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/369/2016
HARARE, 24 FEBRUARY 2016 &
CASE NO LC/H/819/2014 &
10 JUNE 2016
LC/H/766/2014
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/369/2016

HARARE, 24 FEBRUARY 2016 &				    CASE NO LC/H/819/2014 &

10 JUNE 2016							           LC/H/766/2014

In the matter between

ALEX MANDISHORA & 464 ORS					APPELLANTS

Versus

NATIONAL FOODS LIMITED						RESPONDENT

Before the Honourable L M Murasi J

For the Appellants	  H I Chitima (Legal Practitioner)

For the Respondent       A K Maguchu (Legal Practitioner)

MURASI J:

This is a consolidation of appeals filed by the appellants and respondent in Case No LC/H/766/14 and LC/H/819/14 respectively. The appeals emanate from the decision of the arbitrator. The arbitrator dismissed the appellants’ claims in respect of wage differentials allegedly perpetrated by the respondent and a further claim for a failure to establish a Job Grading Committee was equally dismissed. The arbitrator upheld the claim that the respondent should reinstate the Service Awards which was appealed against by the respondent.

The facts in this case are largely common cause. The appellants took their matter to the Designated Agent alleging the following infractions of their conditions of service:

That the respondent had unilaterally withdrawn the appellants’ service awards.

That the respondent had failed to give effect to arbitral awards.

That the respondent had awarded some grades salary increments resulting in discrimination.

That the respondent had failed to re-establish a Job Grading Committee.

That the respondent had failed to register an Employment Code of Conduct.

As stated earlier, the arbitrator dismissed the claims and upheld the claim where it was alleged that the respondent had unilaterally withdrawn the service awards. The respondent filed lengthy grounds of appeal in respect of this finding.

Mr Chitima for the appellants stated that there was evidence placed before the arbitrator to show that the conditions of service had come into existence through the Works Council and if the respondent sought to amend this, it should have gone through the Works Council. It was further argued that the conditions of service had not prescribed as alleged by the respondent and further that the appellants had not waived their rights in this respect.

Mr Maguchu for the respondent argued that the finding by the arbitrator that the Service Awards could not be unilaterally withdrawn was erroneous having regard to the evidence placed before the arbitrator. It was further submitted that had the arbitrator determined on the issues raised by the respondent in respect of prescription, this had the potential effect of dealing with the dispute. As regards the wage differentials, it was stated that the arbitrator was correct in his findings as no employee was being paid a salary less than that prescribed in the Collective Bargaining Agreement. Mr Maguchu further submitted that the issue of discrimination raised by the appellants is not covered in terms of the provisions of the Labour Act.

Precedent has clearly shown that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection to such an extent that another court would not have arrived at that decision on the same facts. (See Chioza v Siziba S 4-15). It is also trite that where there is a finding on facts, a litigant should clearly demonstrate the misdirection alleged.

I will deal with the appellants’ case first. It was argued that the respondent increased the wages of employees in grades C1 and C2 and this was a form of discrimination. The appellants went to quote a section of the Labour Act to buttress this argument. However, the section quoted does not support the appellants’ position. The provisions of the section are clear and unambiguous. The discrimination should be in respect of race, tribe, place of origin, political opinion, colour, creed or gender of a person. The appellants’ argument does not fit into any one of the categories stated in the Act. I agree with the submissions of the respondent’s Counsel that this is not provided for and further that no appellant had alleged that he/she was being paid monies below that stipulated in the CBA. That argument on alleged discrimination must fail.

It was further submitted on behalf of the appellants that the respondent had failed to establish a Grading Committee. The court enquired whether this was in terms of the CBA and the response was in the negative. The question that arises is where is the legal provision that requires the respondent to establish the Grading Committee? The respondent’s Counsel argued that such a Committee exists at the NEC level and one established at the work place has its functions already taken over by that Committee. The Court does not find any legal requirement on the part of the respondent to establish a Grading Committee. The arbitrator’s finding in this respect was that it was discretionary for an employer to establish such a Grading Committee and I am of the view that the finding was correct in this respect.

I now turn to the respondent’s appeal. It was argued that the arbitrator fell into error in holding that the respondent had unilaterally withdrawn the Service Awards and should reinstate them. The first issue that has to be established is whether this was in terms of the contract of employment. Clearly these were not as replied to by Mr Chitima. Further, they were not part of the CBA. McNALLY JA (as he then was) had a similar issue to deal with in NRZ v Gibson Siziba & Ors S 13-2001. The issue that arose was a determination of the amendment and registration of a CBA. It was held in that case that a CBA only becomes binding on the parties to the agreement to which the agreement relates. There is no indication that the Service Awards were implemented in terms of a contract of employment and it was not shown that this was provided in the CBA. A question that arises is where does the requirement to have the Service Awards reinstituted come from? I am of the view that the arbitrator erred in ordering a reinstitution of the Service Awards. A substantial wrong or miscarriage would be confirmed by allowing the decision of the arbitrator to stand in this regard.

In conclusion, the court is of the view that the arbitrator was correct in dismissing the claims by the appellants. However, the arbitrator fell into error in ordering the reinstitution of the Service Awards as there was no legal basis for such an award.

In the result, the appellants’ appeal is dismissed in its entirety. The respondent’s cross-appeal is allowed.

The court makes the following order:

The appellants’ appeal is dismissed.

The respondent’s appeal is allowed and the arbitrator’s ruling is substituted with:

“The claim for reinstatement of Service Awards be and is hereby dismissed.”

Each party to bear its own costs

Mbidzo, Muchadehama & Makoni, appellants’ legal practitioners

Dube, Manikai & Hwacha, respondent’s legal practitioners