Leopard Rock Hotel v Damson Muzhanje

IN THE LABOUR COURT OF ZIMBABWE                    JUDGMENT NO. LC/MC/08/2013
HELD AT MUTARE ON 05 FEBRUARY, 2013                  CASE NO. LC/ MC/24/2011
In the matter between



LEOPARD ROCK HOTEL                             –             Appellant
And

DAMSON MUZHANJE                                –             Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant         - Yvonne Nyambo(Legal Practitioner)
For Respondent        - Eria Mwandipe (Unionist)


MATANDA-MOYO, L.

      This matter was set down in terms of rule 19(3) (a) of the Labour Court

Rules. Appellant had filed heads of argument at the time of hearing. Counsel

for Appellant applied for condonation for late filing of such heads. Respondent

did not oppose the application. Respondent had also filed his heads on the date

of hearing. Both parties consented to having the matter heard on the merits.

They indicated they were prepared to argue the matter. I decided to hear the

matter on the merits. This is an appeal against the arbitrator’s ruling which

ordered as follows;



   1) That Appellant pay to the Respondent the sum of $1 180.37 as backpay

      for underpayment of wages.

   2) That Appellant pays to the Respondent the sum of $193.45 as cash in lieu

      of leave. The above payments were ordered after the arbitrator found
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      that Respondent’s correct grade was 7 and not 1 as classified by

      Appellant.



      Aggrieved by such ruling the Appellant noted an appeal to this court on

the following grounds;

      1.   That the arbitrator erred in law in ruling that Respondent had been

           employed as a caretaker grade7 instead of grade1, of the Collective

           Bargaining Agreement for the Catering Industry SI167/91.There is no

           provision for a caretaker in grade7 of the Collective Bargaining

           Agreement.

      2. That the Arbitrator erred in law by finding that there was

           underpayment of wages      when there is no position of caretaker

           grade7 in the Collective Bargaining Agreement.

      3. That the Arbitrator erred in law in ignoring the contract of

           employment which clearly stipulated that Respondent was in grade 1.



           Appellant prayed that the arbitral award be set aside and substituted

with an order dismissing Respondent’s claims for underpayments.



           The brief facts are that Respondent was initially employed by the

Appellant from 1993 to 2004 when he retired from employment Respondent

was reengaged on 1 September 2008 as a caretaker for Greendale Cottage on a

4 month contract.       Thereafter the contracts were renewed on six months

periods, the last of which expired on 31 December 2010. In September 2010

Respondent was advised that his contract would not be renewed after

December 2010. On 24 December 2010 Respondent collected his wages and


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never returned for work. He then referred this matter for conciliation and later

for arbitration.



          Respondent had alleged unfair dismissal but the arbitrator found that

there was no unfair dismissal. He found that the contract was terminated due

to affluxion of time. When the contract ended on 31 December 2010 it was not

renewed. Respondent had been notified of Appellant’s intention in September

2010.



          However the Arbitrator found that when the Respondent was

reengaged in 2008 his proper grade was grade7 and not grade1. As result of

such finding, he found that Respondent was being underpaid. Appellant has

appealed against such findings. Appellant submitted that the Respondent was

reengaged as a caretaker, which position is in grade 1 of SI 167/91.

Respondent’s duties included maintaining the grounds and watering the

flowers. He performed the duties of grounds and garden hand falling under

grade1.   The Respondent was accordingly paid as such and there was no

underpayment of wages.



          Respondent on the other hand defended the arbitrator’s findings on

the basis that the grading was done on the basis of the duties of the

Respondent. Respondent submitted that he was employed as a hotel police and

his duties involved safeguarding the hotel’s property and to scrutinize the

movement of staff coming into and leaving duty.        He also monitored the

movement of customers entering and leaving the hotel premises. Respondent




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submitted that he was employed as a hotel or house policeman and was

correctly graded under garde7.



          I have firstly perused the contracts of employment which were placed

before the arbitrator. Such contracts provided under paragraph 2 that



          “2. The contract employee is employed as a Greendale Cottage Caretaker Grade 1 at a
          rate of $123-40 per month.”



          It is common cause the Respondent was employed as a caretaker for

the Greendale cottage. The question to be answered is what grade a caretaker

was?   The Arbitrator made a finding that a caretaker is a job in grade 7 of the

Collective Bargaining Agreement.          He did not say how he arrived at that

conclusion. A look at SI 167/91 in particular positions falling under grade7, it is

common cause that the position of “caretaker” is not amongst the positions

appearing under grade7. The positions under grade7 are; “Driver, Floor Supervisor,

Cook pastry and Tractor Driver.” Caretaker position does not match any of the grades

listed above. Even the Respondent admitted that such position does not fall

under grade 7. Respondent submitted that such position is the same as “hotel

or house policeman” under grade6.             Such submission was not before the

Arbitrator. I am in agreement with both parties that the position of caretaker

does not fall under grade 7.            The Arbitrator erred in coming to such a

conclusion.



          Once I have made a finding that the Arbitrator erred in grading

Respondent as a grade7 employee it follows that I cannot confirm his findings

on underpayment.         There was no evidence of underpayment before the
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Arbitrator. It follows any decision which emanated from such error in grading

cannot be sustained.



Accordingly the appeal succeeds and the arbitrator’s award is set aside.




Henning Lock– Appellant’s Legal Practitioners

Zimbabwe Catering and Hotel Workers Committee – Respondent’s Represenative




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