Hellenic Schools (Junior/senior) V Killian Sangurungunda & 25 Others

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/194/2016
HARARE, 25 FEBRUARY 2016
CASE NO.
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THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/194/2016

HARARE, 25 FEBRUARY 2016    		         	CASE NO. LC/H/935/15

AND 8 APRIL 2016

In the matter between:-

HELLENIC SCHOOLS (JUNIOR/SENIOR)				Appellants

And

KILLIAN SANGURUNGUNDA & 25 OTHERS			Respondents

Before Honourable P. Muzofa, Judge

For Appellants		H. Mutasa (Legal Practitioners)

For Respondents		S. Chihombe (ZESSCWU)

MUZOFA, J:

This appeal raiseS one issue for consideration, the interpretation of fees as used in section 8.3 of Statutory Instrument 60 of 2013 the Collective Bargaining Agreement: Welfare and Educational Institutions, “the agreement”.

The respondents are employed by the appellant in different capacities.  In terms of the applicable Collective Bargaining Agreement the appellant was supposed to contribute 75% of fees for respondents as a benefit.  A dispute ensued where it was alleged that appellant failed to comply with the provision of the agreement.  The matter was referred to an arbitrator to determine whether the term fees used in the agreement included tuition fees, levies and other charges, the second term was to determine whether appellant had been complying with the agreement.

The arbitrator made a determination in favour of the respondents that fees included levies and other charges.  She then ordered the appellant to pay fees in terms of the said interpretation.

Appellant argued before the court that the arbitrator fell into error in that inclusion of other charges will result in an absurdity in that the contribution would be different depending on the different schools.   The court was urged to take a cue from such cases as Herentals College(Pvt) Ltd v Release Power Investments Pvt Ltd & Other HH 101/11 and Mauro (nee Nyambo) v Mauro HH 365/13 where school fees were distinguished from levies.  The appellant submitted that the term fees should be understood to mean tuition fees only.

For the respondent it was submitted that at the time of concluding the agreement parties understood fees to mean all charges related to the education of a child.  This was so because appellant paid the 75% contribution of the total fees until sometime in 2013 it reduced the contribution to 30% that is what sparked the dispute.

The respondent distinguished the cases referred to by the appellant, in that in those cases the courts did not exercise its mind on what constituted fees.  Further the Court was referred to the use of the term in section 8 and section 8.1 of the agreement.  Reference was also made to the definition of school fees in Statutory Instrument 162 of 2014.  It was strongly argued that the purpose of the agreement to pay school fees for the employees was to cushion the employees from meeting school fees in total since they were lowly paid employees.

The cardinal principle in interpretation is to give words their ordinary grammatical meaning.  McNally JA in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 264 D-E had this to say

“There is no magic about interpretation.  Words must be taken in their context.  The grammatical and ordinary sense of the words is to be adhered to, as Lord Wensleydale said in Grey v Pearson (1857) 10 ER 1216 at 1234 unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or some repugnancy or inconsistency with the rest of the instrument.”

The point of inception is section 8.  It provides for educational allowances.  They are not defined in the 2013 Statutory Instrument.  They were later defined in Statutory Instrument 102 of 2014 as

“Education allowance means an allowance paid to an employee by the employer, to assist in the payment of school fees for the employee’s children attending school.”

To my mind that definition does not help in the interpretation of the term fees.  It only modified the term to school fees.  The question remains what constitutes school fees.  Guidance can be gleaned from section 8 of the agreement itself.

Section 8.1 provides for Missions and Hospitals “Educational Allowances shall be 75% of both tuition and boarding fees …  Thereafter the reference is on fees only.

8.3 provides

“Independent educational institutions and special schools operated by private voluntary organizations educational allowances shall be 75% of fees payable at local authority and governmental schools …”

In Section 8.1 the parties were clear that fees included tuition and boarding fees only the levies and other charges are not included.  I find no compelling reason to include levies and other charges in terms of section 8.3.  In my view when the employer agrees to pay such benefits the mind is to incentivize the employee and the benefit should be as much as possible uniform.  To that extent that is why it refers to Government Schools and local authority schools.  The tuition fees are likely to be the same but levies and other charges might differ from one Government School to another.  Clearly including levies and other charges as part of fees might result in an absurdity in that the benefit could be different.  I donot think the parties intended that.

In my view fees as used in section 8.3 of the Collective Bargaining Agreement should be taken to mean tuition fees and boarding fees excluding levies and other charges.

From the foregoing, the appeal should succeed and the following order is made.

The appeal be and is hereby allowed with costs.

The arbitration award is set aside and substituted with the following;

“The appellant is ordered to pay 75% of the tuition fees to the respective local authority and Government schools where the respondents’ children attend school.”

Gill Godlonton & Gerrans, appellants’ legal practitioners