Guardian Security v Cecil Muchena

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/06/2014
HARARE, 7 FEBRUARY 2014 &
CASE NO LC/MC/61/2013
28 FEBRUARY 2014
JUDGMENT NO LC/MC/06/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/06/2014

HARARE, 7 FEBRUARY 2014 &		    CASE NO LC/MC/61/2013

28 FEBRUARY 2014

In the matter between:-

GUARDIAN SECURITY						APPELLANT

Versus

CECIL MUCHENA							RESPONDENT

Before The Honourable E Muchawa  :  Judge

For the Appellant	    B Dhlakama (Legal Practitioner)

For the Respondent      J Muwonda (Trade Unionist)

MUCHAWA J:

This is an appeal against an arbitral award which awarded the respondent payment of US$451-00 as a balance of cash in lieu of leave.

The respondent was employed by the appellant as a security guard from 1 October 2009 to 11 October 2012 when he resigned. He had accrued ninety days leave and was paid US$639-00. The issue before me on appeal is the formula used in calculating the cash in lieu of leave. Both parties are basing their calculations on the Collective Bargaining Agreement: Security Industry, S I 76 of 2012 but differ in their interpretation of the same.

The grounds of appeal are stated as follows:

The learned arbitrator erred at law in failing to appreciate that in terms of s 2 (2) of the CBA S I 176 of 2012 (corrected to S I 76 of 2012) the respondent accumulated vacation leave at the rate of two and a half days a month. Hence it was not necessary to convert the leave days to weeks or to get a daily or hourly rate, as the leave days are accumulated by months worked and not on a daily or hourly basis.

The learned arbitrator erred in failing to appreciate the correct meaning and effect of s 5 (1) and 6 (a) of the aforesaid CBA which effectively means that a month for purposes of calculating leave days is composed of 4.333 weeks. It follows that he (sic) employees in the respondent’s position would accumulate two and a half days for 4.333 weeks.

The learned arbitrator erred at law in applying s 6 of the CBA for purposes of conversion of leave days. The section was only meant to apply for purposes of converting weekly, fortnightly or monthly wages to hours or days.

The respondent avers that the arbitrator correctly interpreted the relevant sections of the CBA.

I was urged by the parties to follow the literal rule of interpreting statutes.

The respondent took issue with the appellant’s improper citation of the SI 76 of 2012 as SI 176 of 2012 in his grounds of appeal and claimed that that constituted a fatality that constitutes a nullity at law. The appellant was quick to apply to amend that as it was a result of a typographical error. The matter proceeded thereafter as it was clear no prejudice had been suffered as the respondent had filed a comprehensive response to the appeal.

I was referred by the respondent to s 14 A (2) of the Labour Act [Cap 28:01] which provides that “unless more favourable conditions have been provided for in any employment contract or in any enactment, paid vacation leave shall accrue in terms of this section to an employee at the rate of one twelfth of his qualifying service in each year of employment, subject to a maximum accrual of ninety days paid vacation leave.”

It is therefore the respondent’s contention that the provision in the CBA SI 76/2012 are more favourable. If one looks at the arbitral award, it is clear that the interpretation therein gives more favourable vacation leave provisions. I say so because in general the ninety days leave should generally equate to three months’salary which would be in the region of US$660-00 but the award gave a total of US$1 090-80.

I proceed to consider the CBA SI 76/2012 to establish whether its conditions on vacation leave are indeed more favourable.

The starting point is s 21 of SI 76 of 2012 which deals with the subject of vacation leave. Section 21(2) provides that an employee shall accumulate vacation leave at the rate of two and half days for each month worked. This works out to be similar to the Labour Act provisions in s 14 (2).

In the first ground of appeal, the appellant avers that because of this clause, it was not necessary to convert the leave days to weeks or to get a daily or hourly rate, as the leave days are accumulated by months worked and not on a daily or hourly basis.

In my opinion, s 21 (2) is intended to help work out the number of days accrued by an employee at any given time. It simply means that a qualifying employee would accrue two and a half days for each month worked. At the end of the year an employee would have accrued thirty days leave. This section also enables one to work out the pro-rata accumulated days if one has worked say for a month; two and half days and two months would be five days. It is therefore simply meant to establish the number of accumulated leave days. The appellant’s averment in the first ground of appeal does not therefore advance his case.

I am fortified in my argument by the provisions of s 21 of S I 76 of 2012. There is a particular provision dealing with the calculation of pay in lieu of leave and that is s 21 (16). It provides:

“For the purposes of calculating any period of leave or pay in lieu of leave, an investigator security guard, lance-corporal, corporal, sergeant, sergeant-major and security officer employed in the private security occupation, shall be deemed to work a forty-eight hour week.” (my emphasis)

Section 21 (14) also then refers one to s 6 by providing:

“For the purpose of leave pay, the pay for one day shall be calculated in terms of s 6.”

I find that there is clear direction from SI 76 of 2012 regarding how to calculate pay in lieu of leave in the above cited provisions.

In his second ground of appeal the appellant avers that the arbitrator erred in failing to interpret the effect of s 5 (1) and 6 (a).

In my opinion s 5 (1) simply lays out the ordinary hours of work for officers employed in the private security occupation and states that such hours shall not exceed forty-eight hours per week. I do not find the arbitrator as having erred in finding as he did that according to his interpretation s 5(1) implies that ordinary hours of work per day are twelve hours.

Section 6 (a) provides for the conversion of the weekly equivalent of a monthly wage and says the monthly wage shall be divided by four and one third.

I proceed to do that below using the US$220-00 used by the arbitrator:

220 x 3		=	50-769

13

Weekly wage			=	US$50-77

To derive the cash in lieu in ninety days where there are 12-857 weeks the US$50-77 is multiplied by 12-857 weeks.

In order to verify both the weekly wage of US$50-77 x 12-857 = US$652-744.

The daily wage is 50-769 divided by 7 = 7-25 and for ninety days it also amounts to US$652-744.

I believe s 21(14) directs one to section 6 of S I 76 of 2012. Section 6 provides for how to work out the daily equivalent of a weekly wage for those who work a five day week as well as a daily equivalent of a monthly wage for those who work a five day week.

In casu the respondent does not work a five day week and is deemed to work a forty-eight hour week. The above would therefore not be applicable.

It was clearly not intended in coming up with SI 76 of 2012 to create the absurd position of excluding Saturdays, Sundays and public holidays in the computation of leave days. If the arbitrator’s reasoning is followed then persons working five days a week would get six weeks holiday per year, those working a six day week would get five weeks holiday and those working four days a week would get seven and half weeks holiday. That would be manifestly unfair and would fly in the face of the Labour Act’s purpose as stated in s 2 A to advance social justice in the work place.

I therefore find that the arbitrator erred in interpreting the relevant sections of SI 76 of 2012 in casu.

In the circumstances the appeal succeeds with costs and the arbitral award is set aside and substituted as follows:

“The applicant’s claim for US$549-00 as cash in lieu of leave underpayment be and is hereby dismissed.”

Dhlakama B. Attorneys, appellant’s legal practitioners