City of Harare v Ernest Magaya & 10 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/530/16
HELD AT HARARE 26 JUNE 2016
CASE NO
JUDGMENT NO LC/H/530/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/530/16

HELD AT HARARE 26 JUNE 2016				CASE NO LC/H/322/15

& 9 SEPTEMBER 2016

In the matter between:

CITY OF HARARE					Appellant

And

ERNEST MAGAYA & 10 OTHERS			Respondents

Before The Honourable Hove, J

For Appellant				Ms A Zvoutete (Principal Legal Officer)

For Respondents			Mrs R Peters (Legal Practitioner)

HOVE J:

This is an appeal against an arbitral award.

The respondent raised a grievance against the appellant, their employer.  They argued that they had been wrongly placed in grade 11 instead of in grade 10.

The issue was referred for arbitration and the arbitrator captures the terms of reference as

“To determine whether or not the complainants were wrongly (graded) placed in grade 11 instead of grade 10 upon their deployment to driving duties.”

The arbitrator found that the respondents had been placed in a wrong grade and each of the respondents was to be placed in the right grade i.e. grade 10.

The appellant was dissatisfied with the award and appealed to this court.

The grounds of appeal are as follows;

The arbitrator erred at law by making a legal finding that the claims are not prescribed yet the claims are prescribed and there was no interruption of the prescription periods.

The honourable arbitrator erred at law by making a legal finding that the respondents are wrongly graded in grade 11 and placed them in grade 10 yet no job evaluation has been done in order to ascertain the respondent’s grades and also the respondents were never appointed to perform the duties of Sergeant driver (grade 10) in terms of the Collective Bargaining Agreement: Harare Municipal Undertaking Statutory Instrument 18/07 and Statutory Instrument 66/92.

The arbitrator’s award is grossly unreasonable and irrational in its defiance of logic so as to constitute a ground of appeal in that:

The arbitrator failed to recognize that the claims had prescribed and so he had no jurisdiction to entertain the matter.

The arbitrator ordered the upgrading of the respondents without a job evaluation being done and also he totally disregarded the provisions of Statutory Instrument 18/2007 and Statutory Instrument 66/92.

Ground number 3 a mere repetition of grounds number 1 and 2 and raises no new

issues apart from those already raised in grounds of appeal number 1and 2.

The issue that therefore fall for determination are

Whether or not the claim had prescribed; and

Whether or not the arbitrator was grossly unreasonable when h found that the respondents were placed in the wrong grade.

Whether the claim had prescribed

The position in law as far as prescription is concerned is that a labour officer should not entertain a dispute that is referred to him after a period of two years from the date the cause of action arose.

This is so by virtue of the provision of section 94 of the Labour Act [Chapter 28:01] (the Act) which provides as follows:

94

subject to subsection (2) no labour officer shall entertain any dispute or unfair labour practice unless

it is referred to him, or

has otherwise come to his attention:

his attention:

within two years from the date when the dispute or unfair labour practice first arose.

The respondents however argued that even though the dispute had taken more than 2 years before being referred to the arbitrator, the matter had not prescribed by virtue of section 94 (2) which reads;

94 (2) subsection (1) shall not apply to an unfair labour practice which is continuing at the time it is referred to or comes to the attention of a labour officer.

The respondents thus argued that the failure to properly grade them was continuing at the time the dispute was referred for arbitration.  The claim had thus not prescribed in terms of section 94 (1) of the Labour Act.

I have checked the meaning of continuing and the word continual which is an adjective means

“frequently repeated, going on all the time”

Webster concise edition English Dictionary.

This placement in grade 11 was going on all the time.  So it was continuing at the time the dispute was referred to the labour officer.

The labour officer’s decision to find that section 94 (2) of the Labour Act was applicable to the circumstances of this case and that the claim had not prescribed cannot be faulted.

The appellant argued that the claim had prescribed and referred the court to the provisions of subsection (1) of section 94 of the Labour Act and also to the case of Apotex (Pvt) Ltd SC 100/2002 and that of Watyoka v Zupco (Northern Division) SC 87/05.

These two cases did not concern themselves with the issue of whether or not the dispute was of a continuing nature.  They are thus not relevant to the issue that is for determination in this matter.

In its heads of argument, paragraph 2.3 the appellant attempts to address the issue of section 94 (2) i.e. the issue of continuity, it states as follows;

“It is disputed that the unfair labour practice is of a continuing nature as there is no unfair labour practice in the first place.”

This was a bold averment, it was not substantiated and the appellant failed to substantiate this bold averment that there is no unfair labour practice.

The allegation is that the employer is refusing to place the respondents in the correct grade according to the provisions of law is clearly an un fair labour practice in terms of section 8 of the Labour Act.

The labour officer can therefore not be faulted for finding that the claim had not prescribed in terms of section 94 (2) of the Labour Act.

Whether or not the respondent were wrongly graded.

The appellant accepted that there was a job evaluation by Coopers and Lybrand in 1991.  The appellant claims that the job evaluation was a mere recommendation but the record shows that the council did upgrade the positions of patrolman mobile (Grade 11) to that of Sergeant (Grade 10).  The council had accepted this upgrading and there are two sergeants still in the department who benefited from this upgrading.

The appellant also denied that the respondents had been appointed to do the duties of Sergeant (Grade 10).  But the record also shows that the respondents were redeployed to do the same duties as the sergeant (grade 10) colleagues who were upgraded as a result of the council implementing the recommendation to upgrade the position of patrolman mobile (grade 11) to that of sergeant (grade 10).  It was not disputed that these respondents and the two remaining sergeant (grade 10) are doing the same duties.

Further the appellant’s claim that the council had not implemented the regrading of patrolman mobile positions in line with the job evaluation carried out by Coopers and Lybrand, that the recommendation remained recommendations is not supported by the evidence on record that there are still two persons in that position who benefited.  This was not disputed.  Further the arbitrator found that vote 7704 by council implemented that recommendation.

The appellant has not in any way shown that vote 7704, did not implement the recommendation as claimed.  The arbitrator considered the fact that the record before him showed that the recommendations had been implemented.  It was wrong for the council to fail to implement the results of the job evaluation in respect of the respondents when it was implemented in relation to their colleagues.

The facts on record show that the decision by the arbitrator was not grossly irrational.  It was in my opinion supported by the facts placed before him.

Appeals against arbitral awards are only on points of law and not on factual issues. For an appellant court to interfere with factual findings, it must be shown that there was gross irrationality.  In casu, it has not been shown that the factual findings by the arbitrator were grossly irrational.

In Hama v National Railways of Zimbabwe 1996 (10 ZLR 664 the court stated that

“The general rule of law, - as regards irrationality, is that an appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion.”

Further, it is trite law that in general in finding facts and making inferences, in a civil case, the court may go upon a mere preponderance of probability, although in so doing it may not exclude every reasonable doubt.  In civil cases one may by balancing probabilities select a conclusion which seems to be the more natural or plausible from amongst several conceivable ones, even though that conclusion be not the only reasonable one.  The standard of proof is thus merely on a balance of probabilities.  The arbitrator had to look at the facts placed before him and come to a conclusion that is more probable.  The facts of this case show on a balance of probabilities that the respondents were wrongly graded and ought to have been graded as sergeants (grade 10).  The finding of the arbitrator can thus not be said to have been grossly unreasonable.

This court can therefore not interfere with the factual findings by the arbitrator as they have not been shown to be grossly irrational.

See in this regard Coh-coh Enterprises (Pvt) Ltd v Mativenga & Anor SC 30/01 Tirivangana v University of Zimbabwe SC 21/13.

In the circumstances, this court cannot upset the findings of fact by the arbitrator as it has not been shown that the exercise of discretion by the arbitrator was irrational when one has regard to the evidence placed before him.

Accordingly the appeal is dismissed with no order as to costs.

J Mambara & Partners, respondents’ legal practitioners