City of Harare v C. Gurupira and 16 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/266/14
HARARE ON 1st JANUARY, 2014
CASE NO. LC/H/903/12
AND 23 RD
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/266/14

HARARE ON 1st JANUARY, 2014				             CASE NO. LC/H/903/12

AND 23RD MAY, 2014

In the matter between

CITY OF HARARE					–	APPELLANT

And

C. GURUPIRA AND 16 OTHERS			-	RESPONDENT

Before The Honourable L.F. Kudya J.

For Appellant:	Mr C. Kwaramba (Legal Practitioner)

For Respondents :	Mr S. Mushonga  (Legal Practitioner)

KUDYA  J,

This is an appeal against an arbitral award which was made in favour of the Respondents in a matter where the Respondents, the then claimants alleged that they were performing duties above their grades and had not received payments for that or alternatively had not been promoted to the grades for which they performed the duties.

The background to the matter is that the Respondents who are in the Appellant’s employ in various capacities approached the Arbitrator on the basis that between 2000 and 2009 when the country faced an acute brain drain they were made to perform duties for grades higher than those which they occupied, were not paid for such performance neither were they appointed to the higher grades despite their immediate supervisor’s recommendations that they be so promoted. At arbitration the Arbitrator ruled as follows;

“In view of the foregoing considerations I order the following –

That the appropriate head of department make an urgent recommendation to the council to appoint the listed claimants –

S. Maphosa

P. Zvenyika

C. Chitumba

G. Zivhu

F. Nyahwema

J. Nyakarubve

F. Mhereyenyoka

S. Gomo

C. Hwengwere

That the respondent pay an extra duty allowance at 5% basic salary to the following claimants –

C. Gurupira

S. Maporisa

C. Madhewa

G. Chitsika

S. Chikuwanyanga

S. Gumbo

F. Maringe

C. Chigondo

If paying the claimants extra duty allowance is not amenable to the respondent it is ordered that an appointment of the said claimants to the positions of overseer grade 10 which does not require requisite qualification be effected to 1st September 2012.

That if parties are unable to implement the award in full, may approach the same court for qualification of damages in lieu of substantive appointment.

That the arbitration cost shall be borne by both parties on equal shares of 50% each.”

The Appellant agreed with Clause 1 and 5 of the award said is implementing the same. It was however aggrieved by paragraphs 2 to 4 of the award. It is against these paragraphs that it thus filed the appeal which is the subject of this judgment. The grounds of appeal are as follows:

Arbitrator misdirected self at law by awarding Respondents an extra duty allowance when the terms of reference did not mandate him to decide on the issue of extra duty allowance.

The Arbitrator erred at law by ordering the appointment of the Respondents to non- existent positions which they never acted in.

The Arbitrator erred at law by awarding damages in lieu of substantive appointment as an option yet substantive appointment of some of the Respondents is a recommendation to be made by the head of department which is subject to Council approval.

In the result the Appellants prayed that paragraphs 2 to 4 of the arbitral award be set aside and paragraphs 1 and 5 be made to stand. In response to the appeal the Respondents maintained that:-

Extra duty allowance was an alternate to promotion as spelt out in paragraph 3 of the award that if Appellant is not amenable to promotion of the Respondents then it should pay them an extra duty allowance. The award was thus proper and did not divert from the terms of reference if anything, it gave the appellant options.

Award was proper because the positions were suitable due to the fact that they do not require qualifications and there are people occupying such grades currently hence it is not true that the grades are non-existent. In any event the Respondent acted in much higher grades than those recommended for promotion save that they did not have qualifications for these grades only.

Damages is an option if the Appellant does not execute the award. The award means that if Appellant cannot effect substantive appointments it has an option of paying extra duty allowance.

In the result the Respondent prayed that the appeal be dismissed with costs.

Before dealing with the merits of the appeal it is important to dispose of the point in limine which was raised by the Respondent on the papers and on which oral submissions were also made at the commencement of the appeal proceedings. The point which was taken is that the appeal is out of time and on that basis should not be heard on the merits.

The arbitral award was stamped 3rd August 2012 at arbitration and stamped “received” by the Appellant on 11th October 2012. The appeal was subsequently noted on 9th November 2012. It was therefore the Respondent’s argument that if the date when the award was made is anything to go by it is clear that the appeal was noted outside the 21 day period set by the rules. If however one counts the dates from the date of receipt of the award it would be within the 21 day limit. After hearing the submissions on that point the court ruled that the point was not well placed and dismissed it. It indicated that reasons for the dismissal would follow and these are they.

A reading of Rule 15, Labour Court Rules makes it clear that the dues inducia starts to run from the date of the receipt of the award or judgment by a party. The section is so clear and unambiguous that there is no need to read anything else or to seek to interpret it any further. The court accepts that as per the authority cited by the Respondent’s counsel the lawyers have an obligation to follow up on their clients’ cases with the courts and the authority being a Supreme Court judgment it would also follow that the lawyers appearing in the courts below Supreme Court would also need to do similar chase ups. Being that as it may the Labour Court Rules which govern the time lines for the appeals as already set out above sets it clearly that the dies induciea shall run from date of receipt of the judgment. In the instant case, the date stamp at Appellant’s firm demonstrates that award was received on 11th October 2012 and there is no other evidence to contravert that fact. The fact that the award ordered implementation of the award to be by 1st September 2012 does not detract from the fact that the Appellant only received it at a date later than the 1st September 2012. That being the case and there being no other evidence to contravert the date stamp at the Appellant’s the court is satisfied that the point in limine is without merit and it should accordingly be dismissed.

Turning to the merits of the appeal each case ground will be addressed in turn as below.

Ground One

As regards this ground it is worth noting that the arbitrator in his findings made it clear that before him there was no proof to show that the claimants had acted in grades higher than their own. He however went on to take what this court can describe as “judicial notice” that during the brain drain period it was common place that workers could be called upon to do duties above their grades.

Here was a case where the claimants were stating as a fact that they had acted in higher positions and even stated that their superiors had made recommendation for their appointments to higher grades. The court wonders why the Arbitrator had to go on a fishing expedition to conclude that in his opinion it was possible that the claimants acted as such. All that was needed to be placed before him was concrete evidence demonstrating that fact presumably from persons who the claimants alleged they supervised which would have been an extra responsibility to their existent job grade. In the absence of such the court is satisfied that indeed the Arbitrator’s finding flew in the face of his decision and it cannot be sanctioned at law.

The case of Mutasa v Cagar (Pvt) Ltd. 2009 (2) ZLR 327 (S) states that where the tribunal shows that it seriously misdirected itself on the facts that would amount to a misdirection at law. Applying these principles to the case at hand it is clear that the Arbitrator seriously misdirected himself and to that extent the order which he made in paragraph 2 of the award cannot stand. This ground being with merit as indicated above should be allowed.

Ground Two

With respect to this ground the Appellant maintained that the group of people who the Arbitrator ordered to be placed in grade 10 did not have the requisite qualifications. Besides it was the Appellant’s argument that the grade which the Arbitrator claimed did not require qualifications was a non-existant grade. In reaction to that the Respondents maintained that such a grade did exist and there were persons occupying such a grade hence it was futile for Appellant to argue that the grade was non-existent.

The difficulty which the court had in accepting the reasoning proffered by the Respondent on this aspect is that there is uncontroverted evidence on the record that the Appellant even made endeavours to trade test the Respondents but they failed the trade test. The court wonders why then such a group of people should be promoted by default when it was clear that they could not live up to the expectations of the promotional grades. It is therefore the courts considered view that it was highly irregular of the arbitrator to mandate the Appellant to place them in higher grades when it was clear that they did not possess the requisite skills and qualifications. In fact the order flew in the face of the Arbitrator’s finding which were discussed in ground (1) above. Consequently this ground being merited for the reasons just stated should also succeed.

Ground Three

This ground is intricately linked with the 2 grounds above. A reading of the award shows that the damages award was made as an alternative that in the event that paragraphs 2 and 3 of award were not implemented then damages would follow suit. In ground 1 and 2 above it was ruled that there was no cogent basis for the Arbitrator to make the orders which he made in paragraphs 2 and 3 of his award.  Since the damages order was a direct alternate to the promotion or payment order which this court ruled could not stand it also follows that the damages order can also not stand. In the result the 3rd ground also being with merit should succeed.

IT IS ORDERED THAT the appeal being with merit in all respects it be and is hereby allowed with costs.

………………………………………..

L. Kudya

JUDGE - LABOUR COURT

Mbidzo, Muchadehama & Makoni – Appellant’s Legal Practitioners

Mushonga Mutsvairo & Associates – Respondent’s Legal Practitioners