Miriam Dowera v City of Harare

IN THE LABOUR COURT OF ZIMBABWE                    JUDGMENT NO. LC/H/324/2013
HELD AT HARARE ON 08 MAY, 2013                     CASE NO. LC/ H/508/2012
In the matter between



MIRIAM DOWERA                           –              Appellant
And

CITY OF HARARE                                 –              Respondent




Before The Honourable L. Kudya, President
For Appellant       - L. Seremani (Unionist)
For Respondent      - A. Zvoutete (Principal Legal Officer)




KUDYA, L.

      This is an appeal against the decision of the Arbitrator where she

dismissed the Appellant’s claim.      Appellant was seeking to be substantively

appointed to grade 11 (Senior Clerical Officer) a position which she claims had

acted in for long and thus had a legitimate expectation to be appointed

substantively to that position.



      Facts of the case are that Appellant joined the Respondent Council as a

general labourer grade 15/16 in 1999. In 2003 she had occasion to act in a

capacity above her grade and received some acting allowance for that grade.

During the course of that acting her superiors wrote letters recommending that

she be substantively appointed to the acting grade. When that did not
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materialize she sought the intervention of the Labour Officers and consequently

ended up at Arbitration.



     At arbitration her claim was dismissed on the basis that on the facts and

evidence presented before the Arbitrator she did not have a good case for the

Arbitrator to compel the Respondent to appoint her to the grade she wanted to

be appointed to. Aggrieved by the arbitral award she appealed to this court. It

is that appeal which is the subject matter of the instant judgment.



Her grounds of appeal are set out as follows;



   1) Arbitrator misdirected self by holding that the Ministerial directive of 28

      September 2010 nullified the Minister‘s directive of 28 September 2010

      that Appellant could not be appointed.(Court believes this must have been

      typographical error where the Appellant instead wanted to refer to the

      nullification of the Council Resolution)

   2) Arbitrator misdirected self when he held that there was no proof that

      Appellant ever acted in Senior Clerical Officer Grade 11 yet at same time

      stating that she acted in Chief Clerical Officer Grade 10. This was thus

      irregular and could not be sustained.

   3) The arbitral award is so unreasonable and outrageous in its defiance of

      logic that it constitutes a ground of appeal.



In response to the appeal, the Respondent maintained that;




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   1) The Arbitrator correctly found that the Ministerial directive of 29

      September 2010 suspended the Council Resolution of 25 February 2010.

   2) This ground does not disclose a point of law. Arbitrator correctly found as

      a fact that Appellant had not acted in the position of Senior Clerical

      Officer.

   3) The award is not unreasonable or outrageous. Arbitrator correctly found

      as a fact that, Appellant never acted in the Senior Clerical Officer position

      Grade 11 and hence dismissed the claim.



   The law relating to appeals against arbitral awards is set out in section 98(10)

of the Labour Act that these are only appealable on points of law only. What is a

point of law has been the subject of various decisions within and without our

jurisdiction. One such case authority is the case of Sable Chemicals vs Peter

Easter Brooke SC -18-10.      In this case and other uncited cases, a serious

misdirection on the facts was held to qualify as a point of law hence laying the

basis of an appeal on a point of law.



   A reading of the facts of the instant case, the arbitral award, the submissions

made out at arbitration and all the documentary evidence tendered thereat

clearly demonstrate that what the parties are grappling over are the facts of the

case in issue.   In essence, the only averment which has been made by the

Appellant to put this case within the jurisdiction of this court is the argument

that the Arbitrator grossly erred in his assessment of the facts of the case to the

extent that the decision he arrived at was devoid of logic and should thus be set

aside by the court.




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   It is pertinent to note that both parties seem to agree that the capacity in

which the Appellant acted was the Chief Clerical Officer Grade 10 which appears

on the organogram order where Appellant also received an acting allowance

when she acted as such when the incumbent was on leave. That being the case,

the question which this court has to answer is whether it was unreasonable for

the Arbitrator to conclude that Appellant never acted in the Grade 11 which she

seeks to be substantively appointed to. A reading of the organogram which was

placed before the Arbitrator shows clearly that the office of Senior Clerical

Officer did not appear on that document. It is therefore not clear how the

Appellant would have been asked to act on the non existent grade more so to

ask to be substantively appointed to the same.



   The court is of the view that the Arbitrator correctly found as a fact that such

a grade was not on the organogram and consequently the Appellant could not

be appointed to a non -existent grade. This court found no fault with the

Arbitrator’s reasoning in that respect. In any event as borne out by her target

sheet on page 4 3 of the record it is clear that in 2007 Appellant was doing her

general labourer duties. This gives credence to the version by the Respondent

that the stints when she was asked to act in the higher grade were only for her

to do her usual duties plus the additional duties of the higher grade where she

would receive an allowance for that extra duty. How that could be construed to

create a legitimate expectation in the mind of the Appellant that she would be

appointed to that upper grade substantively is clearly incomprehensible.



   As regards the argument whether the Minister directive nullified the

resolution which stated that employees who had acted for longer periods had to


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be appointed substantively on the face of the two documents given their

sequence it would stand to reason that indeed the Ministerial directive halted

the move to confirm the people in the acting capacity. In any event, even if it

did not do so, the fact that the resolution was made and that there were

recommendations that Appellant be appointed to a higher grade does not on its

own mean that such would happen to her automatically. Apart from her mere

say so there is no documentary evidence to show that she indeed acted on the

grade she claim has to be substantively appointed to. The court therefore again

on this point finds no cogent reasons to upset the findings of the Arbitrator.



   As regards the 3rd ground it is a mere summing up of ground 1 and 2 to the

effect that the conclusions drawn by the Arbitrator were outrageous. The court

is however of a different view especially taking into account the evidence which

was presented before him and how he analysed it. Suffice therefore to state

that the court finds the Arbitrator’s decision to be within the realms of reason

and there is no evidence of it being illogical or outrageous.        The court is

therefore not persuaded that a case has been made out for the upsetting of the

arbitral award. It should therefore accordingly stand and the appeal should in

that light fail.



IT IS THUS ORDERED THAT:



   1) The appeal being without merit be and is hereby dismissed with costs.

   2) The arbitral award is to stand accordingly


Signed


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L. KUDYA ---------------------------

President- Labour Court




Harare Municipal Workers Union – Appellant’s Representative




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