Godfrey Chipumha v Barclays Bank of Zimbabwe Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/550/16
HELD AT HARARE 30 JUNE 2016
CASE NO
JUDGMENT NO LC/H/550/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/550/16

HELD AT HARARE 30 JUNE 2016				CASE NO LC/H/233/16

& 9 SEPTEMBER 2016

In the matter between:

GODFREY CHIPUMHA					Appellant

And

BARCLAYS BANK OF ZIMBABWE LTD			Respondent

Before The Honourable Hove, J

For Appellant			Ms S Omar (Legal Practitioner)

For Respondent		E T Moyo (Legal Practitioner)

HOVE J:

This is an appeal from the decision of the respondent’s appeal board.

The background of the matter is that the appellant is employed by the respondent as a relationship manager.

On 15 April 2008, the applicant was appointed as a manager and since his appointment in 2008, he had use of a Nissan/J85/D/CAB.  He was allowed to purchase the vehicle in 2010 and in 2011 he was given a second motor vehicle, a Nissan NP300 which he continues to use to this date.

In November 2015, some 4 years later, the respondent wrote to him, the contents of which letter aggrieved the appellant who raised a grievance with the respondent.  The complaint was dealt with by the Grievance Committee which held a hearing on the matter and dismissed the complaint.  An appeal to the internal appeals board was not successful and hence this appeal to this court.

In the letter of November 2015 the respondent wrote as follows

“We write to advise that the vehicle you are currently using, Reg. ABPO530, Nissan NP300 will remain a pool vehicle which you are authorised to take home after hours and the following conditions will apply:

The vehicle will remain a pool vehicle and a tracking device shall be installed.

The vehicle will be used strictly for bank business and all other terms and conditions will apply.

All out of Harare personal travels will require prior authority from your line manager.

You will continue to use smart card already allocated to you for fuelling the vehicle.

As you will be taking the vehicle home, fringe benefit tax shall apply for the use of the vehicle.

Kindly acknowledge receipt of this letter by signing and returning a copy to the undersigned within 7 days from the date of this letter.”

The appellant considered this to be a unilateral variation or alteration of a condition of his employment.  He considered this to be so for the following reason.  When he first was allocated a vehicle, the following terms applied. The vehicle would be sold to him after its useful life which was generally after 4 years.

The vehicle was specifically allocated to him (not a pool vehicle) and therefore no tracking device was ever installed on it

The vehicle was allocated for both personal and business use

He never had to seek prior approval/authority from any line manager for out of Harare personal travels, excerpt for cross-border travels

He was allocated 240 litres fuel every month.

The letter of November 2015 was seeking to vary these terms.

The bank does not dispute that since 2008 the appellant had used the bank vehicle

as tabulated above.  The bank was thus now altering the conditions that the appellant had enjoyed prior to 19 November 2015.  The appellant cried foul.  He alleged the bank could not alter the goal posts unilaterally.

The bank states that the appellant was never entitled to the use of the vehicle as a personal issue motor vehicle. That he had used it as such was a mistake.  His contract of employment never gave him that benefit.

The appellant argued that he had been promised that the vehicle he was using would be sold to him in line with the motor vehicle policy as had been the case with the first vehicle.  The bank had specifically undertaken that the same terms were applicable in relation to the 2nd vehicle.  The fact that he had unlimited use of the vehicle and no tracking device was placed on the vehicle and generally the fact that the vehicle never had the terms and conditions of a pool vehicle attached to it made him develop a legitimate expectation that the vehicle was a personal issue and not a pool vehicle and would be sold to him after its useful life.

The grievance committee had made a factual finding that the contract of employment did not give the applicant the right to a personal issue vehicle.  The contract filed as of record does not give this vehicle benefit as one of his benefits.

The claim can thus only be granted if it can be held that the applicant had a legitimate expectation to continue to use the car as he had done prior to November 2015.

It has been argued that in the case of Adminstrator Transval v Traub (1989) 10 ILJ 823 (A) the court held that

“the implication of the doctrine of legitimate expectation is that, if a decision maker either through the application and a regular practice or through an express promise, leads those affected legitimately to expect that he or she will decide in a particular way then that expectation is protected and the decision maker cannot ignore it when making the decision.”

It was stated further that in Dierks v University of South Africa (J399/98) [1998] ZALC 126 the court held that the wording of a contract is not sufficient to exclude a legitimate expectation.  All the surrounding circumstances and particularly the conduct of the parties must be assessed.

It was submitted that the circumstances of this case are such that the conduct and the undertakings of the bank caused the applicant to have a legitimate expectation.

It is clear that the bank varied the conditions hitherto enjoyed by the appellant.  But as is argued by the bank, the contract of employment never provided for such a benefit.  The appellant could not prove that it was a term of his contract of employment.  This is why, I think, reliance is being placed on such cases like the Dierks (supra) which stated that the wording of a contract is not sufficient to exclude a legitimate expectation.

So the following cases;

Commercial Bank of Zimbabwe

Nominess (Pvt) Ltd v Lyton Shumba SC 105/2001 and Agricultural Bank of Zimbabwe Ltd t/a Agribank v Machingaifa & Anor (Civil Appeal No 11/06) [2008] ZWSC 6, where the court held that

“It is a position of our law that a contract of employment cannot be varied unilaterally and that entitlements could not be changed altered or amended at the whim of the employer.  A party to a contract cannot unilaterally alter the terms and conditions of a contract.”

Are not applicable in a case where the employer is not altering the terms of a contract of employment per se but withdrawing a benefit or a privilege that was never enjoyed in terms of a contract of employment.

Such cases would in my opinion be covered under the doctrine of legitimate expectation.  One could argue as in this case that I have always used the vehicle as a personal issue vehicle without

having to seek for authority to go outside town

a tracking device

a tax etc and this had been the case for more than 5 years or 7 years and the employer cannot now make a decision without taking into account the legitimate expectation of the employee.

The Supreme Court has however rejected the argument that regular practice can

form the basis for a legitimate expectation.

(Magodora & Ors v Care International SC 24/14.)  In that case the Supreme Court said it is not open to the courts to rewrite the contract for the parties.  The appellant is in casu asking me to do that which the Supreme Court in the Magodora case (supra) says I cannot do, that is write a contract for the parties in which the appellant will be entitled to the use of a personal issues vehicle when this was not in his contract of employment.

In line with the court’s reasoning in the Foreman & Anor v KLM Royal Dutch Airlines 2001, the appellant cannot claim as a right, the privilege he had enjoyed in the use of the bank’s vehicles over the past 7 years.

Finally, the appellant raised issues of procedural irregularities.  These are appeal proceedings, in an appeal, the court is concerned not with issues of procedural irregularities or the manner in which a decision has been reach but with the substantive correctness of a decision.

The position is trite.  The appellant could have if he wanted to challenge procedural issues, filled an application for review with the court but cannot raise procedural issues in an appeal.

In the result, there has not been any basis established to show that there was a legitimate expectation and the contract of employment does not give the applicant the right he is seeking to enforce before this court.  I accordingly make the following order.

Order

Appeal is dismissed with each party bearing its own costs.

Hussein Ranchord & Company,  appellant’s legal practitioners

Scanlen & Holderness, respondent’s legal practitioners