Hlupeko Moyo v NEC For Zimbabwe Energy Industries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/535/16
HELD AT HARARE 6 JULY 2016
CASE NO
JUDGMENT NO LC/H/535/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/535/16

HELD AT HARARE 6 JULY 2016				CASE NO LC/H/157/16

& 9 SEPTEMBER 2016

In the matter between:

HLUPEKO MOYO						Appellant

And

NEC FOR ZIMBABWE ENERGY INDUSTRIES			Respondent

Before The Honourable Hove, J

For Appellant			S Chako (Legal Practitioner)

For Respondent		A Mugandiwa (Legal Practitioner)

HOVE J:

The facts of this matter are not in dispute, the appellant is employed by the respondent.  He was employed as a book-keeper.

Initially, the respondent had an acting accountant and the appellant reported to him.  The accountant’s contract of employment was terminated and the appellant alleges that he had to take over some of the accounting duties.  A new acting accountant was engaged and he reverted to his original book-keeper duties.   But whenever an acting accountant left his employment, the appellant would assume the duties of an accountant.

Appellant alleges that the respondent ought to pay him an acting allowance or an extra responsibility allowance.  Further, he argues that he ought to be appointed as the permanent accountant in view of the fact that he has been acting in that position for more than six months.  This, he argues, ought to be so by virtue of the provisions of the staff conditions of service policy applicable in their case which states that:

“An employee shall be paid an acting allowance equivalent to the difference between his or her salary and the salary of the grade in which he/she is acting”;

and

“where a person acts for more than six consecutive months, that person is deemed to be appointed to that post.”

The respondent did not agree with the appellant’s arguments and the matter was eventually referred for arbitration.  The arbitrator did not agree with the appellant.  He found that the appellant was not entitled to an acting allowance nor to any allowance for the extra duties.

The appellant was aggrieved and this appeal is against the arbitral award.

The grounds of appeal are:

The arbitrator erred and grossly misdirected himself as to the facts and such misdirection amounted to an error in law in failing to find that on the basis of the evidence that was placed before him, the appellant, who is employed as a senior book-keeper, performed extra duties as an accountant for the respondent during the period stretching from 2009 to 2015.

The arbitrator also erred in failing to find that an agreement can arise either expressly or from the conduct of the parties and does not necessarily have to be in writing.

The arbitrator erred grossly and misdirected himself in failing to find that the appellant was entitled to be compensated for the extra duties of an accountant which he performed for about 6 years.

The arbitrator also erred in failing to find that in terms of the respondent’s policies the appellant was entitled to be appointed to the position of accountant after having held the acting position as accountant for more than six consecutive months.

The arbitrator therefore erred and grossly misdirected itself in failing to find that the appellant proved his case on a balance of probabilities

The relief sought was that the arbitral award be set aside and that the

respondent be paid for the extra duties he performed as an accountant.  The amount payable shall be as agreed between the parties or quantified by this court.

Further, appellant claimed that he be appointed the substantive accountant in terms of respondent’s policies and procedures.

The arbitrator’s reasoning was simple;

He accepted that the appellant had never been appointed as an acting accountant.

For his extra responsibilities, he had been elevated to the position of a senior book-keeper and was compensated and enjoyed the attending benefits.

He also accepted that he had been shown incidences where appellant had done the duties of the accountant but was of the view that when one does a specific chore for a senior grade, one does not automatically qualify for appointment to the senior grade.

The appointment of one to an acting capacity is the preserve of the employer.

I do not find the arbitrator’s conclusions of facts grossly unreasonable.

The policies that the appellant basis his claims on clearly state that when one is

acting, he shall be paid an acting allowance.  It does not say that when one performs extra duties then he shall be paid an acting allowance.

The evidence may have shown that he did perform extra duties but the right to an acting allowance arises when one is acting and the evidence before the arbitrator was that the appellant was never appointed into an acting position.  The employer recognized these extra duties he had to carry out in the absence of the acting accountant and elevated him to the position of senior book-keeper.

This court also see no gross misdirection in the arbitrator’s finding that it is the employer’s prerogative to appoint anyone or not to appoint to any higher position either permanently  or in an acting capacity.  The Supreme Court has stated in the case of  Magodora & Ors v Care International Zimbabwe SC 24/14 case that the court cannot rewrite contracts on behalf of the parties.  The court in that case stated that:

“In principle, it is not open to the courts to re-write 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.  This is so as a matter of public policy.”

The arbitrator also come to a reasonable conclusion that the appellant could not be confirmed by this court as the accountant.  The appellant’s claim for being confirmed as the permanent accountant arises out of the policy that when one acts for more than six months, then they are deemed to be appointed in the position.  But as earlier stated, there never was any evidence that the appellant was ever appointed as an acting accountant.  By his own admission, he performed extra duties.  The policy does not say that were you perform extra duties you shall be confirmed in a higher grade.

The arbitrator looked at the facts placed before him and came to the conclusion that the most probable version was that the appellant was never appointed in an acting capacity and could not claim the benefits that accrue when one is appointed in an acting capacity. It is trite that in general, in finding facts and making inferences in civil cases, the arbitrator could go upon a mere preponderance of probability although he may not exclude every reasonable doubt by choosing to take the course that he takes.  He was well within his rights to select a conclusion which seemed to be the more natural or plausible conclusion amongst several conceivable conclusions after balancing the probabilities.

See in this regard the cases of Ebrahim v Dittman NO 1995 (1) ZLR H 184

Govan v Skidmore 1952 (1) SA 732

This court, in casu, is sitting as an appellate court, it is an accepted position of law that an appeal court will not interfere with the exercise of discretion of a lower tribunal unless such exercise has been afflicted by serious misdirection which makes nonsense the decision arrive at.

Attorney General v Howman 1988 (2) ZLR 402.

The court can thus only interfere with findings of facts where the findings are grossly unreasonable, capricons and mala fide.

Tirivangana v University of Zimbabwe SC 21/13.

I do not believe this to be the case here.

I accordingly made the following order;

The appeal is dismissed with each party bearing its own costs.

JT Mawire & Partners, appellant’s legal practitioners

Wintertons, respondent’s legal practitioners