Charles Mutongwizo and Fifteen Others v City of Harare

IN THE LABOUR COURT OF ZIMBABWE                           JUDGMENT NO. LC/H/358/2013
HELD AT HARARE ON 12 JUNE, 2013                                CASE NO. LC/ H/486/2012
In the matter between



CHARLES MUTONGWIZO AND FIFTEEN OTHERS                             –          Appellant
And

CITY OF HARARE                                                    –          Respondent




Before The Honourable E. Makamure, President
For Appellant         - Mr L. Seremani (Legal Officer)
For Respondent        - Mrs R. T. Chimhenga (Legal Officer)




MAKAMURE E.,

      The Appellants are employed of by the Respondent in various capacities.

They also acted in certain higher positions for periods in excess of 2 years (since

20 March 2009). They were aggrieved by acting in those periods and felt that

the Respondent was committing an unfair labour practice by not substantively

appointing them to posts in which they were acting. The matter was referred

for conciliation. They failed to settle. A certificate of no settlement was issued

and the matter was referred to arbitration. The issue for determination was:


      “whether or not City of Harare has committed an unfair labour practice by not appointing the
      above 16 substantive to the posts they are acting in’’
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      The learned Arbitrator found that the Respondent had not committed an

unfair labour practice. The Appellants were aggrieved by that determination.

They appealed to this court on the following grounds.

   1. The Honourable Arbitrator erred with respect in failing to appreciate the

      Appellants’ claim that they had to be appointed substantively to the

      positions they were acting since March 2009 in compliance with Item 29

      (i) of Council resolution which resolved that Council employees who had

      acted in vacant higher positions for long periods be appointed on to such

      position.

   2. The Honourable Arbitrator with respect grossly erred in taking a simplistic

      interpretation of the Ministerial Directive of the 29 th of September 2010

      saying that it reversed the Council resolution when the Directive only

      prohibits Councils from recruitment not promotion.

   3. The Hounourable Arbitrator respectfully misdirected himself by not taking

      into account the fact that other employees who had acted for long

      periods were appointed substantively into the positions they were acting

   4. The Hounourable Arbitrator erred by not taking into consideration the

      intention of the Legislature in enacting Clause 18(d) (5)(ii)(d) of the

      Collective Bargaining Agreement: Harare Municipal Undertaking (SI 18 of

      2007) which provides that:
            “No employee who has been appointed to act in higher position shall continue to act
            in such position for a continuous period exceeding six months without the position
            being substantively filled and any extension shall be for a maximum non-renewable
            period of twelve months”




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         It is not disputed that the Appellants were in March 2009 appointed to act

in higher positions in term of letters of appointment written along the following

lines:


                 “following the adoption the new Human Resources Department Structure, I have
                 appointed you to act on the new vacant position of ……. for an initial period of(6) six
                 month OR until the position is substantively filled whichever is sooner.
                 You will be paid an acting allowance for the tenure of your acting appointment”


         It is also common cause that on February 25, 2010, the following

recommendation was moved by Council :
         ‘(i) that council employees who have acted in vacant higher positions for long periods be
         appointed onto such positions on substantive basis.
         (ii) that the Human Resources Director reports to the Human Resources and General Purpose
         Committee on the employees currently acting in vacant positions who qualify to be appointed
         onto such positions on substantive basis” (my emphasis)




         It is further common cause that the Appellants were given notice to

terminate their various acting positions with effect from 30 January 2012.



         Further at page 55 of the record is a letter from the Minister for Local

Government Rural and Urban development dated 29 September 2010.                                     The

operative part of the letter reads as follows :


         ‘with immediate effect no local authority may employ any staff member at any level or grade,
         including casual or contract workers without the written permission of the Minister. When
         compelling reasons exist for recruitment these should be submitted, together with defenses of
         employment costs and the relevant revenue source, to the Minister for his consideration.


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      This directive is not designed to hinder Councils in their operations but to rationalize the
      employment costs and the need to clear salary and statutory obligations arrears.”

      (Emphasis added)



      The above directive was made in terms of Section 313 of the Urban

Councils Act Chapter 29:15 and Section 133 of the Rural District Councils Act

Chapter 29:13. The Minister’s directive in my view is clear and meant that unless

there were compelling reasons to recruit employees, the situation was to

remain as it was.



      What this meant within the context of the Appellants’ position was is that

if one was in an acting position, they remained acting.

        Further the letters of appointment were very specific; the persons were

to act either for 6 months or until the posts were filled. The import of the letters

of appointment is that those very posts could have been filled by persons other

than the appellants. In my view therefore, while the effect of the Ministerial

directive was to “freeze” any new appointments, circumstances as determined

by the employer could also result in the appellants not being appointed to the

posts in question. The Appellants therefore could not, under the circumstances,

have a legitimate expectation to be appointed to the positions in which they

were acting.



      It is also important to note that Section 8 of the the Labour Act

Chapter28:01 (The Act) defines what unfair labour practices are. The conduct of

the Respondent does not fall under the definition provided in the Act. This

means that the Respondent did not commit an unfair labour practice. (See also

Muwengwa vs PTC 199792) ZLR 483(S))
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        After assessing the facts of this case it is my view that the Appellants

have not made a case for legitimate expectation (See Kanonhuwa vs Cotton

Company of Zimbabwe 1998 (1) ZLR 68(H)). Further the Learned Arbitrator did

not make a simplistic interpretation of the Ministerial directive of 29 September

2010.    In any event it is the prerogative of the employer to promote an

employee. In the case of the City of Gweru vs Josephat Munyari SC 15/05 the

Supreme Court stated that “Promotion is the province of the employer who is not obliged to

promote the most suitable person for the job and failure to promote Respondent was not an unfair

labour practice.”   The Court can therefore not interfere with the employer’s

discretion to promote or not to promote.



        In the circumstances I find that there is no error in the determination by

the learned Arbitrator. The determination is confirmed.



        I therefore find that there is no merit in the appeal. In the result the

appeal fails.



Accordingly it is ordered that the appeal be and is hereby dismissed with costs.




Harare Municipal Workers Union –             Representatives for the Appellants

Legal Division of the City of Harare - Representatives for the Respondent




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