City of Harare v Simbarashe Chinatsa and 27 Others

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/46/2013
HELD AT HARARE ON 18 FEBRUARY , 2012              CASE NO. LC/ H/706/2011
In the matter between



CITY OF HARARE                                       –          Appellant
And

SIMBARASHE CHINATSA AND 27 OTHERS                    –          Respondents




Before The Honourable L. Kudya, President
For Appellant      - R.P Chimhenga (Legal Officer)
For Respondents    - V. Mazhetese (Legal Practitioner)




KUDYA, L.

       This is an appeal against the arbitrator’s award in which it was held that

the Appellant council had committed an unfair labour practice against the

Respondents and was thus ordered to correct the same.



       The facts of the case are that in 2007 the Appellant came up with a new

organogram meant to change the grading and designations of its employees.

Same was approved by a resolution of the full Council and was partially

implement by the re-designation of some of its employees.



      The Respondents who were in Appellant’s employ as patrol persons were

meant to be branded sergeants in the new structure. The new structure also
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effectively did away with the post of patrol persons. Contrary to expectation the

Respondents were not placed in the new structure and branded as sergeants.

Instead the Appellant placed them in an acting capacity as sergeants almost for

an infinite period judging from the fact that since the inception of the

organogram they remained in an acting capacity way beyond the period

allowed/stipulated by the Urban Councils Act till the time that they took this

matter up with the arbitration authority.



    Further to that those who were engaged in shift work and being paid same

suddenly discovered that their shift allowance had been unilaterally withdrawn

by the Appellant. Incensed by the abuse of the Labour laws in that respect by

Appellant, the Respondents approached the Arbitrator with a view to him/her

ruling that the Appellant’s conduct constituted an unfair labour practice and

requested that the Arbitrator regularize the anomaly by endorsing that they

were substantive sergeants since the inception of the organogram and that

those on shift work be paid their shift work dues.



          After hearing both parties’ arguments on the matter the arbitrator

concluded that indeed the Appellant had engaged in an unfair labour practice

by not putting respondents into substantive grades as well as by denying shift

allowances to those who were legally entitled to it and had accordingly worked

such shifts. He ruled in favour of the Respondents, who were the then claimants

in the arbitration proceedings.



   Aggrieved by the decision of the arbitrator the appellant filed its appeal to

this court, which is the subject of this judgment. The Appellant cited 3 grounds


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of appeal but a reading of these on the face of the record show that it is only

one ground of appeal that the arbitrator grossly misdirected himself on the

facts of the case that were before him to the extent that the decision that he

arrived at was one as no arbitrator applying his mind would have made. To that

extent his conduct was said to constitute an error of law which this court was

approached to correct.



            On the other hand, the Respondents maintained that the arbitrator

correctly applied his mind and found in their favour. In essence they argue that

he interpreted the law correctly and made correct factual findings which justify

the order that he made in their favour.

       The facts of the case are common case. The major dispute is as regards

the implementation of the organogram.       Appellant argues that it was not

implemented as evidenced by the fact that some of the grades on the

organogram were at no stage ever filled a fact which should not have been so if

the implementation went ahead.



     On the other hand the respondents argue that it was implemented and

evidence to that effect is from the names of their superiors who just after the

adoption of the organogram were placed in new grades.



       Appellant maintained that its placement of the respondents into the

position of acting sergeants was meant only to be a motivational tool for them,

not that they had to be automatically graded to the substantive grade of

sergeant.




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        It is pertinent to note that in cases of this nature, the question to be

answered is whether the arbitrator did or did not err on a point of law which

warrants interference by this court. What a point of law is has been dealt with

exhaustively in the cases of Sable Chemicals Industries Limited vs Peter

Easterbrook

SC 18 / 10 and that of Norman Matsito and Tendai Katsande vs Cargar (Pvt)

Ltd SC 47/09.



    Garwe JA in the Sable Chemicals case (supra) defined a point of law as:
     “1.A question which the law itself has authoritatively answered
     to the exclusion of the right of the court to answer the question
      as it thinks fit in accordance with what is considered to be the
      truth and justice of the matter;
    “2. A question as to what the law is thus an appeal on a question of
      law means an appeal in which the question for determination is
      what the true rule of law is on a certain matter .
     “3 . Any question which is the province of the judge instead
        of the jury is called a question of law .
     “A serious misdirection on the facts amounts to a misdirection
      in law as the giving of reasons that are bad in law constitutes
     a failure to hear and determine according to law”


   The law is quite categoric that the factual findings of the lower tribunal shall

not be open to attack on appeal unless it is shown that they were so outrageous

and ridiculous that the only conclusion that can be reached is that the decision

was arrived at without any proper application of one’s mind “whether the judge had
taken leave of his/ her senses”



      In the instant case the reason why the court concluded that only a single

ground was raised was because it is the finding of the arbitrator on the
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grading and the overtime which the appellant maintains were given without

due regard to what the law says and what the facts in the matter pointed out

to. In essence the gross unreasonableness argument raised on ground 3 cannot

be dealt with in isolation with the factual findings made by the arbitrator on the

issues of the grading and the shift allowances complained of by the

respondents.



      A reading of the arbitral award shows that the arbitrator concluded that

the Appellant had engaged in unfair labour practices for 2 reasons. Firstly as

regards the grades argument his finding was that evidence in the form of the

Council resolution of the implementation of the organogram as well as the fact

that indeed some employees namely Kakono and Dube had been placed into

grades within the new organogram persuaded him to conclude that indeed the

organogram had been implemented.



           This rendered baseless the argument by the Appellant that the

organogram had not been implemented. It is in the light of this finding of fact

that the arbitrator agreed with the respondents that having them in an acting

capacity into eternity served no meaningful purpose than to just stifle them

where their benefits were concerned. In fact he, in this court’s view correctly

ruled that maintaining that set up where the patrol person grade had been

made redundant and respondent to continue acting without limit would

effectively mean that they would have been left as ghost workers who were

neither patrol persons nor sergeants. His reasoning that the continued acting of

the Respondents entitled them to substantive status was therefore well placed

and backed by evidence.


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        The Appellant argues that arbitrator erred because he ordered that the

substantive status should date back to the inception of the organogram yet in

its view the Respondents only acted as sergeants since 2010 thus the sergeant

status should only have been spoken of from that point onwards. It is however

pertinent to note that the conclusion to state that the substantive status operate

from the inception of the organogram was occasioned by the arbitrator’s ruling

that the placement into acting capacity was a ploy by Appellant to deny the

Respondents’ substantive status and the attendant benefits. To that end it thus

became irrelevant as to when the Respondents had been put into the acting

grades.



      The court did not find anything irregular on that finding by the arbitrator In

the court’s view the argument about the period for acting provided for in the

Urban Councils Act cited by the appellant therefore became a non-issue and

deserved no further comment.



       As regards the shift allowance, the court indeed accepts that the law is as

simple as stated by the appellant. It is however noted that contrary to

submissions in appellant’s heads of argument, the arbitrator did not order

payment of shift allowances from nowhere. In fact a clear reading of his order

states “ all those performing shift work notably employees stated in group I should be paid shift

allowances accordingly “ A simple reading of this order means only these who had

proven records of having done shift work were entitled to allowances. The court

is not aware as to where the Appellant got the argument that it was ordered to

pay shift allowances only on the basis that the job description provided for such.


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      In the result the court is convinced that there was no misdirection at all on

this point. The order is quite categoric in its reference to payment only for those

who should be paid shift allowances. Nowhere does it state that the allowance

has to be paid only as a matter of course but should be within the parameters of

what the law provides for. The reasoning by the arbitrator on the above

discussed points does not leave one with the view that his decision was

outrageous as argued by the Appellant. It is clear that he correctly interpreted

the law and determined the facts that were before him in a well-reasoned

fashion as borne out by his judgment filed of record. This court is therefore

satisfied that the appeal is without merit and should therefore fail.



It is therefore ordered as follows:

That the appeal being without merit be and is hereby dismissed with costs.

The decision of the arbitrator is accordingly confirmed.




Signed

L. KUDYA                        --------------------------------------------

President Labour Court


J. Mambara and Partners- Respondent’s Legal Practitioners




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