C. Mushure & Others v City of Harare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/982/2016
HARARE, 1 NOVEMBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/982/2016

HARARE, 1 NOVEMBER 2016			          	       CASE NO. LC/H/987/14

AND 16 DECEMBER 2016

In the matter between:-

C. MUSHURE & OTHERS					Appellants

And

CITY OF HARARE			 			Respondent

Before The Honourable F.C. Maxwell, Judge

(IN CHAMBERS)

MAXWELL, J:

The record of this matter was placed before me for consideration in chambers.  This is an appeal against the portion of the arbitral award that dismissed the Appellants’ claim for appointment to substantive post Grade 10.

Appellants are employed by respondent as Patrol women Grade 11.  They raised a grievance of non payment of acting allowances and failure by the respondent to appoint them to the position of sergeant Grade 10 on a substantive basis since they have been executing those duties since March 2012 to 4 December 2013. The matter went for conciliation and subsequently arbitration.  The arbitrator upheld the claim for acting allowance as the respondent made a concession that appellants are entitled to the acting allowances for the period 20 March 2012 to 4 December 2013.  The arbitrator however dismissed the claim for substantive appointment to Grade 10.

Aggrieved, the appellants noted an appeal to this court on the following grounds.

The Learned arbitrator erred and misdirected himself in holding that the appellants could not be appointed substantively to Grade 10 despite conceding that they had acted in that position well beyond the maximum nine (9) months prescribed in SI 135/2012.

The learned arbitrator erred and misdirected himself in distinguishing the Chinatsa judgment when in fact it was not distinguishable, having arisen from the same set of facts and circumstances such as the one before him.

The Learned arbitrator also erred and misdirected himself in finding that the appellants did not have a legitimate expectation to be promoted when in fact they had such.

Appellants prayed for the setting aside of the arbitrator’s decision on that aspect and for an order for their substantive appointment to Grade 10.

Respondent opposed the appeal on the basis that the arbitrator was correct in deciding the matter on substantive appointment as there is no legal provision conferring a right to substantive appointment to the appellants.  Further that the present case is distinguishable from the case of Chinatsa & 27 Others v City of Harare LC/H/46/13 therefore the arbitrator’s decision cannot be faulted.  Respondent also averred that there was no legitimate expectation on the Appellants to be substantively appointed to the position of Sergeant Grade 10. Respondent prayed for the dismissal of the appeal.

In dismissing appellants claim, the arbitrator correctly stated that when one is claiming a promotion, same must establish a right to so claim failing which the claim will be unsustainable at law. Appellants failed to establish the right.  They sought to rely on a provision that limits the acting period to 9 months.  The provision in Section 27 (4) (d) of SI 135/12, the Collective Bargaining Agreement: Harare Municipal Undertaking (General Conditions of Service) states;

“An employee who has been appointed to act in a higher position shall continue to act in such a position for a continuous period of 3 months and any extension shall be for a maximum non-renewable period of 6 months.”

The provision does not go on to say after the extension of 6 months the incumbent shall be appointed substantively to that position.  The arbitrator’s position on that aspect therefore cannot be faulted.

The arbitrator is also criticised for distinguishing the case of Chinatsa and 27 Others v City of Harare LC/H/46/2013 (Chinatsa case). The criticism as unwarranted.  The arbitrator held that the dispute in the Chinatsa case bordered on implementation of a new organogram which is not the dispute in casu.  The introductory second paragraph of the Chinatsa judgment indicates that the issue was on a new organogram meant to change the grading and designations of the employees.  Appellants in this case started acting in the positions they claim after the new grading and designations were already operational.  I therefore find no fault with the arbitrator’s position.

The arbitrator is also criticised for finding that the appellants did not have a legitimate expectation to be promoted.  Again the criticism is unwarranted.  Appellants seen to base their claim for legitimate expectation on an alleged Council resolution of 25 February 2010.  They do not go on to demonstrate that the alleged resolution was applicable to them for the period March 2012 to December 2013.  The arbitrator was of the view that the recommendation of 25 February 2010 applied to persons who acted prior to 25 February 2010.  Appellants did not demonstrate this to be wrong.  The arbitrator also relied on the case of Colleta Mudarikwa and Another v Director of Housing and Community Service N.O and Another SC-56-06 and Muwenga v PTC 1997 (2) ZLR 483.  Appellants did not demonstrate that the arbitrator’s reliance on those cases was improper.  In the final analysis I find the arbitrator’s position unassailable.

Consequently the following order is appropriate.

The appeal be and is hereby dismissed for lack of merit.