Merjury T Masuka v Mt St Mary's Mission

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/205/16
HELD AT HARARE 12 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/205/16

HELD AT HARARE 12 FEBRUARY 2016			CASE NO LC/H/560/14

& 8 APRIL 2016

In the matter between:

MERJURY T MASUKA					Appellant

And

MT ST MARY’S MISSION				Respondent

Before The Honourable E Muchawa, Judge

For Appellant			In person

For Respondent		Mr L T Muringani (Legal Practitioner)

MUCHAWA, J:

This is an appeal against an arbitral award.

The appellant was employed by the respondent initially as a tuck shop assistant in 2007.  In 2009, she was transferred to work in the priest’s house designated as a cook but performing duties which included cleaning, hand laundering and she alleges stores too.  She therefore essentially worked as a domestic worker as defined in the Domestic Workers Employment Regulations, 1992.

In September 2013, the appellant was further reassigned to the school kitchen to work as a cook.  It appears that the appellant resisted this move and did not report for duty at the new station.  She was then charged for absence from work without authority or reasonable excuse.  A hearing was held at she was subsequently dismissed on 11 November 2013.

The appellant then lodged a complaint in March 2014, with the National Employment council Welfare and Educational Institutions, alleging a long list of infringements by the employer and claiming about seventy five thousand dollars for various alleged infringements by the employer including that the employer had caused continuous bleeding, and domestic violence.

The claims were then synthesized and what emerged then was an allegation of a demotion, working extra duties, working overtime, a claim for notice pay and bonus payment.

When conciliation failed, the matter was referred to arbitration on two terms only being;

Establish if M Masuka should be paid for extra duties i.e. laundry, stores and cleaning.

Establish if M Masuka should be compensated for overtime worked.

The arbitrator dismissed both claims.

On appeal before me, the appellant challenges these findings on the basis that;

the jobs of tuck shop assistant (grade 5) and cook (grade 4) are not in the same grade and the transfer therefore amounted to a demotion.

she was working overtime by one and a half hours daily at the priest’s house.

upon dismissal, her terminal benefits were not correctly calculated and were not paid within 24 hours as prescribed by the Collective Bargaining Agreement.

she was not given an opportunity to make oral submissions at the arbitration hearing.

The appeal is opposed and I deal with each emerging issue, in turn, below.

Issue 5 – Denial of opportunity to make oral submissions before the arbitrator

On this issue, I find favour with the respondent’s submission that appellant is questioning the method of trial, rather than the conclusions on the law and the facts.

Consequently, this does not qualify as a ground of appeal but is a ground for review.  (See City of Harare v Zvobgo 2009 (1) ZLR 218 at 224).

Issue 1 – Whether the transfer to the priest’s house amounted to a demotion

Though the arbitrator was erroneously persuaded by the respondent to find that the jobs of a cook and tuck shop attendant are both in grade 5, it was conceded by Mr Muringani, counsel for the respondent, that the position of a cook is in grade 4, a grade lower to that of a tuck shop assistant which is in grade 5.

The respondent argued that since the transfer was on a personal to holder basis as the appellant retained her higher grade and salary and benefits, she has no basis to complain as she suffered no prejudice.

It was further pointed out that the relevant CBA S.I. 102 of 2014, whilst providing that an employee performing  work in a higher grade than that in which she is normally employed, be compensated it does not provide for compensation for the situation in casu and this points to lack of such necessity.

The appellant’s argument is that even though her grade and salary were not changed, she had to do jobs which were in different lower grades.

A perusal of the First Schedule to the CBA shows that the hand launderer is a grade 1 job, cleaner is a grade 2 job whilst that of a cook is a grade 4 job.

I find that technically, the facts presented show that there was a demotion.  The arbitrator did not deal with the issue of demotion as he made a wrong factual conclusion that the grades relating to the two jobs were the same.

The effect of my finding on demotion will only be resolved by my consideration of the remaining emerging issues.  This is because the appellant is not questioning her dismissal in the appeal before me, nor is she still at work.  What she wants is to be paid for extra duties and overtime worked in her job as domestic worker/cook at the priest’s house.

Issue- Extra duties

Mr Muringani conceded that the appellant did perform duties outside the role of cook she was advised to have been assigned in the priest’s house but refuted she performed any stores duties.

It was explained that the appellant was transferred to work as a housemaid but designated as a cook upon transfer because the relevant CBA has no designated job of a housemaid or domestic worker.   The duties of cleaning and laundry are said to be ancillary to the post of a cook.

The appellant conceded that she was able to carry out such duties in a day’s work and the work she did was that of a domestic worker and not a cook.  It was explained that before her assignment to the priest’s house, there were other employees doing the jobs of hand launderer, cleaner and stores person but she was doing all four jobs.

The CBA in section 7 (4) provides that an employee who is required to perform work in a lower grade than that in which he or she is normally employed shall not suffer reduction in his or her wages.  This section would apply to an employee who is temporarily  performing duties in a grade lower to their own.  This section is inapplicable in casu as the appellant was reassigned and was not temporarily performing the duties in question.

Section 7 (6) of the CBA provides the steps to be taken by an employee or employer where the operation performed by an employee is not specified in the First Schedule.  The respondent should have provisionally placed the appellant in a grade.  In casu she was retained in the higher grade 5.

Thereafter the matter should have been referred by either party to the full council for classification.  Neither party referred the matter in terms of section 7 (6) (b) from 2009 to 2013.

Section 7 (5) of the CBA provides that where a reference is made for classification and one is graded in a lower grade than the one previously  held, they can accept to continue on a lower salary or refuse and leave on three months’ notice.  That section shows that what happened to the appellant, ending up in a lower grade was envisaged.  She was however not paid a lower salary but retained the higher salary.

The mischief sough to be cured by the CBA is the reduction in salary.  That mischief does not exist in casu.

It would be undesirable for this court to interfere with the employer’s deployment and reassignment of human resources, where that is envisaged by the CBA and in any event, it is the employer who knows best when, where and how best to deploy its human resources.

I find therefore that though the appellant performed what she calls extra duties, there is no legal basis to order that she be paid for this nor for the technical demotion.

Issue 3 – Overtime claim

The arbitrator’s finding that the claim for 192 days overtime was not adequately supported by documentary evidence cannot be impugned.

Faced with appellant’s claim of having worked overtime, and the respondent’s denial of that, the appellant had the onus to prove her allegation.  See Astra Industries Ltd v Peter Chamburuka SC 27/12.  Unfortunately the appellant has not discharged this onus before me.  It is just her allegation without any proof of overtime worked and approved by the respondent.

Issue 4 – Improperly calculated terminal benefits and delay in payment

In submissions before the arbitrator, the appellant submitted that her terminal benefits had not been properly worked out and she had suffered as a result of the delayed payment and needed to be compensated for the delay for which she was charging at an unspecified daily rate.

I understand why the arbitrator did not detain herself on this issue.  It was not part of the terms of reference and in any event, there was no legal basis for such a claim.

The rest of the other issues raised by the appellant before the arbitrator are equally irrelevant to the terms of reference.

Consequently this appeal be and is hereby dismissed for lack of merit in its entirety.

Muringani, Mandikuruba & Partners, respondent’s legal practitioners