Norman Muvengwa v Pharmanova (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/06/2013
HELD IN HARARE, NOVEMBER 01, 2012
CASE NO. LC/H/625/11
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/06/2013

HELD IN HARARE, NOVEMBER 01, 2012	CASE NO. LC/H/625/11

In the Matter Between

NORMAN MUVENGWA			     	APPELLANT

And

PHARMANOVA (PVT) LTD				RESPONDENT

Before The Honourable E. Makamure         : President

For The Appellant     		: Mr G. Pendei (Trade Unionist)

For The Respondent  		: Mr N. Madya (Legal Practitioner)

MAKAMURE E.,

The appellant was employed by the respondent.  He had grievances against the employer.  The relevant NEC was approached.  In a letter dated 30 September 2008 the appellant wrote to the relevant National Employment Council (NEC) along the following lines:

“I hereby wish to submit my appeal for intervention by your good office in order to address my grievances.  I am an employee of Pharmanova (Pvt) Ltd initially employed as a bookkeeper up to September 2005.  I was transferred to the maintenance department to work as a logistics officer in order to avoid retrenchment.  A position they regarded as low level managerial.

I kindly request the grievance handling committee to look into the following issues which I feel are a serious violation of labour regulations.

I have accumulated 30 minutes per day since I was transferred to this position without payment of overtime.

My salary was not increased yet the letter of appointment clearly stated that it will be reviewed after 3 months completion of probation.

My service and housing allowance was freezed (sic) in January 2006.

Salary increments given to me are now depended (sic) on management as and when they feel like.

In July 2008 I received a negative net salary of $2, 391, 315, 525, 715.00.

I would be very grateful if I am accorded the opportunity to be heard and the matter put to rest.”

The NEC met and resolved the grievances.  The NEC directed the respondent company to comply with its determination dated 3 April 2009.  The NEC, among other things directed as follows:

“3.  That Muvengwa be reinstated to his status of NEC’s Graded employee i.e. Grade 8, the grade he held as at August 2005.  This reinstatement to Grade 8 is with effect from January 2009 and also entails awarding Muvengwa the NEC rates from that same period.”

My understanding of paragraph 3 of the NECs determination (above) is that the appellant’s grievances were to be addressed with effect from January 2009 onwards.  In the result, the respondent company was obliged to pay the appellant the salary and relevant benefits of a Grade 8 employee with effect from the date directed by the NEC.

In compliance with the directive from the NEC, Pharmanova wrote the appellant as follows in a minute dated 28 April 2009.

“We refer to the NEC determination dated 3rd April, 2009.

Please be informed that you have been reinstated as an NEC graded employee with effect from January 2009, as directed ...”

The appellant was still aggrieved.  He appealed to this Court on the following grounds:-

The NEC appeals Committee misdirected itself on item 3 of its determination in purporting to deal with the matter on assumption rather than giving a determination based on facts.

The NEC Appeals Committee erred in not determining all issues which were placed before it for determination.

Because of the omission (2) above, the NEC Appeals Committee failed to appreciate that the respondent was bound to effect on the appellant’s salary the NEC negotiated increments, the failure of which resulted in the appellant’s receiving of a negative net salary in July.

This Court (my brother Hon. Kachambwa) on 1 November 2010 in case number LC/H/67/09 made the following order:

“1.  The NEC decision of 3 April 2009 is set aside.

2.  The matter is hereby returned to the NEC to decide on the issues raised     by the employee in his letter of Appeal dated 30 September 2008.  The NEC should be specific on those issues.

3.  If the employee is not satisfied with the NEC decision he may follow the procedure for appeal or review as the case may be.”

What is to be noted is that by 1 November 2010, the respondent had already complied with the NEC decision of 3 April 2009.  This is said in view of its letter of 28 April 2009 (above).

In compliance with this Court’s order the NEC met once again and made its determination.  The appellant was once again aggrieved by paragraph 3 of the respondent’s later determination.  That paragraph (3) reads thus:

“3.  Service and Housing allowances were frozen in January 2006.

The NEC directs the reinstatement of these allowances with effect from January 2006 up to December 2008.  (assuming the period January 2009 and beyond has been paid) calculated at the then prevailing interbank rate.”

My understanding of the above paragraph and at the pain of repeating, is that the previous order had cured the grievance from January 2009 onwards.  I say so because that was specifically mentioned in the order from the NEC.  Further, the employer specifically wrote the appellant when it complied with the order from the NEC.

It is therefore clear that the NEC did NOT determine this matter on an assumption.  The facts are there to prove it.  Clearly all matters which the appellant had raised were adequately considered by the NEC.  The respondent submitted that the NEC made its determination based on facts and not on assumptions. I agree.  As indicated above sufficient attention was had on what was then for consideration.  I am in agreement with the position adopted by the respondent and authorities cited in support thereof.  In O’shea v Chiunda 1999 (1) ZLR 333 the Learned Trial Judge had the opportunity to ask a labour relations officer what issues she had considered in coming up with a certain determination.  The labour relations officer then articulated to the Judge the issues she had considered.  In her determination however, she indicated to the Trial Judge that she did not specifically mention each and every issue which she had considered.  When the matter subsequently reached the Supreme Court, the Supreme Court was satisfied that the labour relations officer had duly considered the issues under consideration.  The Supreme Court remarked:

“I am therefore, satisfied that the claim for overtime payment was considered and rejected by the labour officer.  The fact that it was not mentioned in the determination is, in my view, irrelevant.”

In the present matter, the NEC mentioned that the new salary and benefits were with effect from January 2009.  What this means is that with effect from January 2009 the new salary and benefits were applicable.  This appears to be sufficiently clear.  The respondent company complied with that direction.  In view of the above, I am unable to say that there was any misdirection on the part of the NEC.

In the circumstances I find that there is no merit in the appeal.

Accordingly, it is ordered that the appeal be and is hereby dismissed with costs.

ZCPAWU, Representatives for the Appellant

Wintertons, Legal Practitioners for the Respondent.