Glendale Spinners & Weavers v P Jamu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/813/14
HELD AT HARARE 23RD OCTOBER 2014
CASE     NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/813/14

HELD AT HARARE 23RD OCTOBER 2014		CASE NO LC/H/367/14

& 5TH DECEMBER 2014

In the matter between:-

GLENDALE SPINNERS & WEAVERS				Appellant

And

P JAMU								Respondent

Before The Honourable E Muchawa, Judge

For Appellant		G Makings (Legal Practitioner)

For Respondents		T.C. Sengwe (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award.

Respondent is an employee of the appellant.  He is currently employed as an assistant accountant having been initially engaged as a creditors clerk in July 1997.

There seems to be confusion as to when the assistant accountant position was taken.   Appellant believes it was in 2007, respondent thinks it was in 2003 as stated in his claim before the arbitrator.  Respondent alleged

non-payment  of allowances for the position of assistant accountant from 2009 and also provision of accommodation.  Such a complaint was lodged with the Ministry of Labour on the 28 October 2013.

Appellant contended that the claim had prescribed in terms of section 94 of the Labour Act [Chapter 28:01].

The arbitrator found that the claim had not prescribed, ordered that appellant pays an accommodation allowance of $200 per month from 2009 to the date of the award.   Appellant was further ordered to provide respondent with accommodation with effect from 1 April 2014.  In addition there was an order to pay an amount of $16 380.00 being the difference between respondent’s salary and what was termed the prevailing market salary for an assistant accountant from 2009 to the date of award.

In the appeal before me the following are the issues for my determination;

Whether or not respondent’s claim had prescribed when he lodged a complaint in October 2013.

Whether or not respondent is entitled to an accommodation allowance of $200 per month from 2009.

Whether or not respondent is entitled to the amount of $16 380.00 as arrear salaries.

The appeal is opposed.  I deal with each of the issues in turn below:

Prescription

Appellant’s argument is that respondent was promoted in 2007 and he got a substantial increase in Zimbabwean dollars.  His salary was then dollarized in 2009, like everyone else.  It is argued that whether one takes 2007 or 2009 as the date of promotion, respondent’s claim is prescribed as it came some 6 or 4 years later yet the Labour Act provides that a labour officer shall only entertain a dispute which comes to his attention within two years from the date when the dispute or unfair labour practice first arose.

The promotion is said to be a single event and so should be the increase.  It should therefore have been addressed, at least, within two years of 2009.  As respondent is a managerial employee such increment would have been subject to negotiations.  It is thus argued that by remaining silent for the 6 years or 4 years, respondent’s claim was prescribed by October 2013.  Appellant points to the problem that would arise if the arbitrator’s position is upheld as appellant would be burdened unnecessarily with a budgetary excess and that would have a negative impact on its operations.

Respondent’s case is that this situation qualifies as a continuing unfair labour practice and is therefore exempt from prescription in terms of Section 94 (2) of the Labour Act.

In determining this issue the approach I should take is succinctly laid out in the case of Cotton Company of Zimbabwe v Mobil Oil Zimbabwe (Pvt) Ltd & Anor 2010 (1) ZLR 251 (H) wherein MAKARAU J (as she then was) quoted with approval from Street v Evans 1977 (1) RLR 293 (A)

“When dealing with the question of prescription, one has to ask oneself what is it that is being prescribed.   What is being prescribed is one’s right to sue.  The right to sue depends on having a cause of action which has accrued to one…”

In casu respondent would have accrued a right to sue for arrear salaries

and an accommodation provision or allowance based on the promotion which happened at least latest in 2009.  The promotion was a single event and respondent had two years in which to negotiate and agree on a new salary and benefits and enforce those.

The rationale for the prescription provision is to bring finality to litigation and penalise a dilatory creditor who is aware of the cause of action at his disposal but does nothing.  (See Hodgson v Granger & Anor 1991 (2) ZLR 10 (HC).

I am not convinced by respondent’s case that the unfair labour practice was continuing.  I believe the dispute about adjusting the salary and benefits first arose upon promotion.

On the basis of the foregoing I uphold the appeal on the basis of the matter having prescribed.  In the event however, that I may be wrong, I wish to deal with the two other issues.

Accommodation Allowance

Appellant argues that it does not have housing allowance as a condition of employment to any of its employees.  There is limited accommodation offered to employees from different levels on the basis of need and upon application.  Such employees pay nominal rentals per month for the houses.

The respondent’s position is that since appellant was renting out accommodation to non employees at a monthly rate of $200.00,  this should be the rate at which he should be paid an accommodation allowance.  He further claims that he should not be expected to apply for accommodation but should have same availed on the basis of respondent’s grade in the company.

I therefore find that the arbitrator erred in coming up with a non existent contractual term which could open flood gates for appellant yet there is no legal basis for it.  In taking this position I am alive that courts and tribunals should not get into the habit of making contracts for the parties who should be free to contract as they please (See Delta Operations (Pvt) Ltd v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S) at 86 F – G.

Arrear salaries

Appellant states that respondent was a manager and was not subject to statutory increases.  Any increment would be based on negotiations.

The arbitrator is said to have erred in finding that there was a prevailing market salary for an assistant accountant of $800.00.   This is said to have no basis at all as salaries for assistant accountants are said to range from around $300.00 up to $1500 depending on the nature of business, ability to pay, background, experience, qualifications and individual ability of a person.  Imposition of such a salary is said to be tantamount to making a contract for the parties as it would lead to inequity in the work place and result in chaos.

Further it is argued that back dating the $800 figure  TO2009 is tantamount to asserting an amount payable today to an earlier date, without any legal basis.

In short the arbitrator is said to have no basis on which he determined an appropriate salary and then back dated it.

Respondent justifies the award by asserting that $800 is the prevailing market salary for an assistant accountant.  It is said to be a factual finding of the arbitrator which does not amount to a question of law (per Sable Chemicals v Easterbrook SC 18/2010) as there is no such assertion in the grounds of appeal.

I find that the appellant has made the assertion that the arbitrator misdirected himself in law by reaching the factual conclusions he did and that such misdirection is one that no reasonable person could have reached.  In my opinion such an assertion is sufficient to found a question of law (See Reserve Bank of Zimbabwe v Comine Granger and Anor SC 34 01 at p 6).

In his submissions before me, respondent concedes that there was no (sufficient) evidence led before the arbitrator on the alleged market rate of $800.  Such evidence is promised to be led at the hearing before me. In this respect, I find that the arbitrator made a finding that was not based on any credible evidence.

I have already stated that appellant and respondent were supposed to negotiate a new salary and benefits.  Appellant seems open to engage in these.  It is undesirable for this court to negotiate contracts on behalf of parties.  In principle it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.  (See Magodora and Ors v Care International Zimbabwe SC 24/14).

Because of the foregoing reasons the appeal succeeds on the two other grounds.

Accordingly the arbitral award of Arbitrator M Gadaga of 17 March 2014 be and is hereby set aside in its entirety.  It be and is hereby substituted as follows

“Claimant’s claim be and is hereby dismissed.”

G Makings, appellant’s legal practitioners

Sengwe Law Chambers, respondent’s legal practitioners