City of Harare v D.T. Zhungu & Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/686/14
HARARE ON 23RD JULY , 2014
CASE NO. LC/H/330/14
AND 10 OCTOBER, 2014
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/686/14

HARARE ON 23RD JULY , 2014			             		CASE NO. LC/H/330/14

AND 10th OCTOBER, 2014

In the matter between

CITY OF HARARE					–	APPELLANT

And

D.T. ZHUNGU & ANOTHER				-	RESPONDENTS

Before The Honourable R.F. Manyangadze, J

For Appellant   :	Ms R.P. Chimhenga  (Legal Officer)

For Respondents:	Mrs R. Peters (Legal Practitioner)

MANYANGADZE J,

This is an appeal against an arbitral award issued by Honourable N. Shumba on 13th March 2014. The arbitral award upheld the Respondents’ claim of unfair labour practice. The award also ordered the Appellant to evaluate the job of Principal Accountant.

The facts forming the background to this matter are common cause. The Respondents are employed by the Appellant as Principal Accountants (Grade 6).

The Respondents raised a grievance that the Appellant was committing an unfair labour practice by not appointing them to Grade 4. After internal grievance procedures failed to resolve the dispute, it was referred for arbitration. The Arbitrator ruled that Appellant was committing an unfair labour practice. She then ordered that Appellant carries out a job evaluation exercise, for the position of Principal Accountant, to establish the appropriate grade.

The Appellant noted an appeal against the first part of the arbitral award, which ruled that it was committing an unfair labour practice against the Respondents.

The sole ground of appeal reads as follows:-

“The Arbitrator erred at law by holding that the Appellant had committed an unfair labour

practice against the Respondents yet the Appellant did not commit any unfair labour practice against the Respondents.”

The Respondents raised the point that the appeal is against a factual finding by the Arbitrator. The factual finding, according to the Respondents’ in paragraph 2 of their Heads of Argument, was that the Appellant had committed an unfair labour practice by not promoting the Respondents or neglecting to carry out a proper job evaluation exercise.

A resolution of the issue raised in the ground of appeal involves determining what the law is on upgrading and promotion. It also involves looking at what constitutes an unfair labour practice. It involves ascertaining the applicable law and regulations, as provided for in the Labour Act [Cap 28:01] and the regulations governing upgrading and/or promotion, in the Appellant’s organization. When looking at these  issues, in my view, one is looking at a question of law. One is not simply considering whether the Appellant did or did not do an alleged act. There is a consideration of what the law is, and whether it was correctly interpreted and applied. See Muzuva v United Bottlers (Pvt) Ltd. 1994 (1) ZLR 217 (S) and Sable Chemicals Industries Limited v David Peter Easterbrook SC 18/10.

On the merits, it seems to me this case very much turns on an interpretation of the Applicant’s promotions policy and procedures. The Court has been referred to Clause 3.3 thereof. It provides as follows:-

“An employee can be upgraded under the following circumstances:

3.3.      Where his/her current position is submitted for re-evaluation and consequently attracts 		higher grade.”

The provision shows that the employer evaluates the job level or position. If, as a result of such evaluation, it is found that the job attracts a higher grade, the employee is then upgraded. It is the prerogative of the employer to conduct the evaluation or re-evaluation, whatever the case may be, and determine whether the position deserves elevation. The evaluation may result in retention of the current grade. The Clause does not provide for automatic upgrading. It certainly cannot be read as providing for that. It also, in my view, is not placing an obligation on the employer to evaluate and upgrade an employee. This is an exercise of discretion on the part of the employer, having regard to all the factors pertaining to the job in question.

It appears the Arbitrator, relied on the Respondents’ Head of Department’s  recommendation, as proof that the Respondents had to be appointed to Grade 4. Non-compliance therewith, it seems, was viewed as an unfair  labour practice. The Arbitrator stated, at page 4 of the arbitral award that:

“The Report No. CT 30/2011 from the City Treasurer of the Respondent made a recommendation to have the incumbents upgraded. In my view the Report in itself is proof that there is merit in the claim of unfair treatment.”

In this regard, Ms Chimhenga, on behalf of the Appellant contended that;

“Legally, a recommendation is not binding on any party. It can either be accepted or rejected.”

Ms Chimhenga further contended;

“Submission of a grade for evaluation does not necessarily result in upgrading. Ordering of a job evaluation does not point to any unfair labour practice.”

I agree with these submissions which were made on behalf of the Appellant. This matter essentially deals with the prerogative of the Appellant to evaluate and/or upgrade its employees. There is no basis on which the finding of unfair labour practice was made. It would be a different matter if the Respondent’s Head of Department’s recommendations were adopted by Council, and passed as a Council Resolution.

Also, if the procedure provided for in Clause 3.3 of the Appellant’s Promotions Policy supra, was carried out, and it was resolved that Respondents’ positions attracted a higher grade, the obligation to comply would then have been created. None of this was before the Arbitrator. In the circumstances, interference with her finding of unfair labour practice is warranted.

In the result, it is ordered that;

The appeal be and is hereby allowed.

The arbitral award be and is hereby varied by the deletion of the part that reads;

“The claim of unfair labour practice is upheld” and its substitution with

“The Appellant did not commit any unfair labour practice against the Respondents.”

Each party bears its own costs.

J. Mambara and Partners -  Respondents legal practitioners