Kuda Chinake & 8 Ors v Director General (Zimbabwe Parks & Wildlife Management, Botanical Gardens)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/434/2016
HARARE, 18 NOVEMBER 2015 &
CASE NO LC/H/588/2015
22 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/434/2016

HARARE, 18 NOVEMBER 2015 &			         CASE NO LC/H/588/2015

22 JULY 2016

In the matter between

KUDA CHINAKE & 8 ORS						APPELLANT

Versus

DIRECTOR GENERAL (ZIMBABWE PARKS				RESPONDENT

& WILDLIFE MANAGEMENT, BOTANICAL

GARDENS

Before the Honourable Kudya J

The Appellant in Person

For the Respondent	Ms Sumbo (Legal Officer)

KUDYA J:

This is an appeal against the decision of the arbitrator where he ruled that the appellant employees be paid overtime which was due to them and that the rate to be used for payment of their field duty danger allowance be $5-00 per day a figure to which it was reduced by the works council meeting of 10 July 2009 down from the previous $15-00 per day.

The employer opposed the appeal on the basis that the arbitrator was right to hold the employees to the works council document because same was negotiated on their behalf and they could thus not refuse to be bound by it. In effect the employer argued that the claim had prescribed since it was brought up well after the two year period provided by the Labour Act. It also argued that since the issue only arose after the termination of the employee’s jobs on account of misconduct it shows that the employees were not genuine in their demands but were only trying to hit the employer financially by arguing that they were owed overtime and field duty danger allowance above the $5-00 rate set by the works council.

The appeal grounds were set out as “the arbitrator erred on a question of law in finding that section 25 of the Labour Act did not apply to a collective bargaining agreement negotiated at works council level”. The prayer was that the court reverse or set aside that decision and substitute same with its own decision.

In response to the appeal the respondent maintained that “we are opposing the appellant’s argument and our heads of argument will be submitted in due course.”

Indeed on 27 August 2015 the respondent did file its heads where it argued that the works council resolution of 10 July 2009 reducing the danger allowance to $5-00 per day was binding on the appellants. It argued that since the works council meeting was made up of employer and employee representatives it was clear that signatures of the workers’ representatives bound the appellants to that resolution. It also argued that the resolution was not challenged by the appellants until they had left employment and that was consistent with people who had acquiesced with the new $5-00 per day arrangement.

In any event the appellants had not proved their entitlement neither did they submit evidence that they executed such duties on conditions entitling them to same as per the respondent employees Handbook.

In the result the respondent prayed that the appeal be dismissed with costs for lack of merit.

The law is clear that the appeal in relation to arbitral awards are primarily on points of law. See section 98 (10) Labour Act. For the point of law fact debate. See Muzuva v United Bottlers 1994 (1) ZLR 329.

The only issue for determination here is whether arbitrator was right or wrong to found as he did that the appellants were bound by the $5-00 rate set by the 10 July 2009 document. The arbitrator in his ruling noted that indeed 10 July 2009 agreed on the reduction of the danger allowance to $5-00 and in his view since such document was birthed by the employer and employee representatives it was therefore binding on the appellants. He noted in particular the fact that since that agreement the appellants had not taken issue with the matter until after they had been dismissed from employment. It is also noteworthy that the prescription argument by the respondent is without foundation as it was not raised at arbitration. See case of ANL Grindlays Bank Zimbabwe v Hungwe 1994 (2) ZLR 1 (S).

A reading of section 25 which was quoted by the appellants demonstrates that an agreement derives its binding effect from the agreement of the parties concerned. In the case at stake the employees chose the representatives who represented them at 10 July 2009 meeting and on the face of the agreement reached same was by consensus. It would thus be futile for the appellants to now argue that the representatives did not have their mandate. A plain reading of the statute quoted by the appellants’ shows clearly that whatever acts are done by the representatives on behalf of their principals is sufficient acquittal of their mandate. The court would not like to believe that the legislature intended that before a decision is made to bind the parties it meant every one of the members concerned had to sign to show that they were in agreement. The role played by the representatives as catering for their constituent elements sufficed for the purpose of the Act. The court is therefore not persuaded that the appellants have a good case on appeal. It should accordingly fail.

IT IS ORDERED THAT

The appeal being without merit, it be and is hereby dismissed.

The arbitral award is to stand.

Each party to bear own costs.