City of Harare v Record M Chikandwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/445/14
HELD AT HARARE 23RD JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/445/14

HELD AT HARARE 23RD JUNE 2014 			CASE NO LC/H/526/13

& 18TH JULY 2014

In the matter between:-

CITY OF HARARE						Appellant

And

RECORD M CHIKANDWA					Respondent

Before The Honourable P Muzofa, Judge

For Appellant		C Kwaramba (Legal Practitioner)

Respondent			In person

MUZOFA, J:

This is an appeal against an arbitral award issued on 3 June 2013 ordering appellant to issue uniforms for 2011 and 2012 alternatively pay respondent an amount equivalent to the cost of the uniforms.

The circumstances giving rise to the matter are not disputed.  The respondent is employed by the appellant.  In 2009 and 2010 appellant issued respondent with uniforms as he was a committee officer.  The uniforms consisted of three suits, five shirts/blouses and two pairs of shoes per annum.  From 2011 the appellant withdrew the entitlement by just stopping issuing the said uniforms.  The respondent used the internal processes to remind the appellant to issue the uniforms to no avail.  Eventually the respondent referred the matter to the National Employment Council for the Harare Municipal Undertaking for conciliation which failed to resolve the matter.  The matter was referred for compulsory arbitration after a certificate of no settlement was issued.  The parties appeared before an arbitrator who made a finding in favour of the respondent.

The appellant was not satisfied by the decision and appealed to this court.  The main issue raised by the grounds of appeal is whether the uniforms issued to the respondent became a benefit accruing to the respondent.

Respondent works in the chamber secretary’s department.  The chamber secretary in her capacity as the head of department authorised the issuing of the uniforms to respondent and other legal officers or committee members.  The question that arises from these circumstances is whether the chamber secretary had delegated authority to make such an order as a head of department.  According to the respondent appellant delegated its decision making powers to employees in terms of section 145 of the Urban Councils Act [Chapter 29:15].  In this case the chamber secretary had delegated powers to make the said decision and thereafter seek ratification from council.  The fact that he was issued for two years created legitimate expectation that he will continue to receive the uniforms.  Appellant did not agree with the respondent’s perspective but submitted that the chamber secretary had no powers to give a benefit, that was the prerogative of the employer being appellant.  Therefore the respondent should not base his claim on an illegality.

It is a trite principle of law that the employer is vested with the duty to pay the agreed remuneration and benefits.  Where there is a variation in the remuneration and benefits it should be done by the employer in consultation with the employee in terms of the laws and regulations binding that industry.  In this case the question is whether the chamber secretary represented the employer to vary the respondent’s contract?  I believe the answer is in the operation systems within the appellant.  Section 145 (1) of the Urban Councils Act provides as follows:-

“1)	A council may delegate, subject to such conditions as it may impose, to an employee of the council such of the powers vested in it by or under this Act or any other law as it considers to be necessary or desirable and may in like manner amend or withdraw any such delegation:

3)	The delegation in terms of subsection (1) of any powers to an employee shall not preclude the council from itself exercising the powers so delegated and the council may amend or rescind any decision of an employee in the exercise of the powers so delegated to him.”

Clearly from the above sections appellant may delegate its powers to an employee.  According to appellant the chamber secretary acted in accordance with this section.  However there was no evidence to show what powers had been delegated to the chamber secretary.  Equally there was no evidence to show what the chamber secretary could not do.  The section therefore cannot assist the court on that aspect.  There are however filed of record the Human Resources and General Purposes Committee minutes for 15 December 2009 and 11 – 12 October 2010 and Executive Committee minutes for 10 July 2006.  What is clear from these minutes is that decisions made by heads of departments were placed before committees for ratification, some decisions were ratified in retrospect.  Some decisions were in respect of expenditure and were ratified.  The chamber secretary in a meeting of the Human Resources and General Purposes Committee minutes dated 15 December 2009 recommended the approval of a new fixed term contract for an employee in her department.  This was approved or authorized in retrospect.  To my mind the chamber secretary had made the decision at the departmental level and the employee was on the job.  The committee ratified the decision.  This is an example that the chamber secretary had delegated powers, to make a decision on behalf of the appellant.  However the buck did not stop with her, all the decisions had to be ratified.

In any event the decision was then agreed to by the Human Resources Director this is evidence from the departmental memorandum dated

25 September 2009.  The Finance department went on to honour the requisitions.  To my mind the practice was that heads of departments had delegated powers to make decisions such as the one in issue.  However the buck did not stop with the head of department.  The decision was supposed to be placed before the relevant committee for it to be ratified.  Thereafter, after ratification the benefit became an authorised entitlement.    In this case it seems the chamber secretary’s decision was not placed before any committee for ratification.  It remained the head of department’s decision.  This was ineptitude on the part of the chamber secretary and it should not be allowed to prejudice the respondent.  For two years the respondent received the benefit and to just withdraw it based on the argument of illegality amounts to an unfair labour practice.  The chamber secretary had the capacity to make such a decision.

Having made that finding the requirements of legitimate expectation are satisfied See Matake and Others v Local Government HB 93/07.  However the respondent’s legitimate expectation is qualified for the benefit would only constitute a valid variation of contract when the relevant committee made a decision on it.  The respondent was aware of that fact, that a relevant committee must ratify the chamber secretary’s decision.  The question that remains for determination is whether before ratification by the relevant committee can the decision be changed.  I do not think so the respondent would be entitled to receive the uniforms until the relevant committee made a decision on it.  The court cannot exercise its discretion on whether the respondent was entitled to the uniforms.  The court cannot usurp the committee’s functions.  The appellant has to make a decision whether to ratify or not to ratify the chamber secretary’s decision.  I agree with the arbitrator’s findings.

The court was referred to the case of Willex Motsi and City of Harare LCH 398/12 and the case of A Chigudu and 9 others and City of Harare LCH 111/12.  Both cases related to non-payment of a retention allowance authorised by the Town Clerk.  In the Chigudu case the appellants relied on section 136 (2) (a) of the Urban Council Act and the court found that the Town Clerk had no authority to grant the retention allowance.  In casu the circumstances I believe are distinguishable from the Chigudu case the delegation of powers is founded on section 145 (1) of the said Act.  The appellant failed to show that the chamber secretary did not have the said delegated powers.  The evidence of past committee meetings showed that committees ratified on several occasions decisions made by heads of departments in retrospect.  I agree with the reasoning of the court in Willex Motsi case  since the decision by the chamber secretary was not placed before the relevant committee for a decision, this must be done and only then can the uniforms be regarded as a benefit varying the contract of employment.

Accordingly the following order is made:-

The appeal be and is hereby dismissed with costs.

The  appellant is ordered to issue respondent with uniforms from 2011 until a decision is made by the relevant committee on the issuance of uniforms to respondent alternatively pay an equivalent amount to purchase the uniforms.

Mbidzo, Muchadehama & Makoni, appellant’s legal practitioners