Peterhouse v J Gwande & 22 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/254/16
HELD AT HARARE 29 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/254/16

HELD AT HARARE 29 FEBRUARY 2016			CASE NO LC/H/927/14

& 22 APRIL 2016

In the matter between:

PETERHOUSE						Appellant

And

J GWANDE & 22 OTHERS				Respondents

Before The Honourable L M Murasi, Judge

For Appellant			Mr G Jakuosi (Legal Practitioner)

For Respondent		Ms S Chihombe (Trade Unionist)

MURASI, J:

The facts in this appeal are common cause.  Respondents are employed by the appellant in various capacities.  The dispute between the parties arises from the provisions of transport allowances for the respondents.  Appellant provides transport from the workplace to designated points in the town of Marondera.  The free transport provided by appellant does not proceed to areas inhabited by the respondents.  Respondents claimed that they are forced to pay for their transport in order to access the pick-up points or alternatively they have to walk the distance which is about three kilometres.  Respondents claimed that the appellant should provide transport to their respective areas or should pay the transport allowance and withdraw the free transport offered.  Appellant argued before the arbitrator that it was unreasonable for the respondents to make the claim as free transport was being provided and the bad roads would mean that appellant’s fleet would be susceptible to “wear and tear”.  It was argued before the arbitrator that respondents were being unreasonable in demanding that they be paid transport allowance when other employees were not paid and that there should be consensus with the majority of the employees.  The arbitrator found in favour of the respondents and the appellant has appealed to this court.

A reading of appellant’s grounds of appeal shows two central issues which were raised.  The first is that the decision by the arbitrator in interpreting the Collective Bargaining Agreement was not “practised” as the appellant had the sole discretion as to whether free transport or an allowance should be paid.  The second issue was that the arbitrator erred in making a finding that a distance of three kilometres was too long a distance for the respondents to walk.

Mr Jakuosi for the appellant stated that he adopted and abided by the heads of argument filed of record.  He further stated that respondents had simply made a bold averment which was not substantiated.  It was further submitted that the arbitral award was grossly unreasonable and should therefore be set aside.  In the heads of argument it was submitted that it was not reasonable for a person in the position of the arbitrator to have come to the conclusion that three kilometres was too far for respondents to walk.  It was further submitted that the decision lay with appellant as to whether free transport or an allowance was to be provided to the respondents.  It was argued that the arbitrator should have taken a practical approach to the whole issue as it was not possible for the appellant to pick and drop every employee at his/her place of residence.

Ms Chihombe for the respondents stated that section 5 of Statutory Instrument 60 of 2013 does not give an employer absolute right to make a determination on the issue of payment of transport allowances.  She further stated that the law was in favour of employees and compelled the employer to provide free transport or pay transport allowances for employees not resident at the workplace.  Ms Chihombe further submitted that the use of the work “shall” was peremptory and that appellant had failed to comply with the provisions of the statute.  It was argued that the appellant left the burden with the respondents who had to fork out money and pay for transport to and from the pick-up points.  She also stated that those employees who had not complained about this anomaly had simply waived their right to do so.  Ms Chihombe stated that where the appellant paid the transport allowance, it would not provide free transport in respect of those employees who were paid the allowance.  As far as the issue of there being a consensus by the majority, it was submitted that this was a statutory demand and therefore had nothing to do with the dictates of the majority.

It is settled that an appellate court will not interfer with factual findings made by a lower court unless those findings were grossly unreasonable in the sense that no reasonable tribunal applying its mind to the same facts would have arrived at the same conclusion or that the court had taken leave of its senses or put otherwise, the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it or that the decision was clearly wrong.  See Zinwav Joseph Mwoyounotsva S 28/15.  In casu, the arbitrator made a finding that the appellant was liable to pay transport allowances in respect of the respondents.  The Statutory Instrument clearly provides that where an employer does not provide free transport to employees not provided with accommodation, the employer must pay transport allowances.  The appellant has argued that free transport is provided to designated points to the respondents.  Respondents have stated that they need to pay for some transport to access the “free transport.”  Respondents further argue that some of the employees who benefit from the transport offered by the appellant do not pay extra money as they live within the designated pick-up points.  Appellant counter-argued that the respondents are not in the majority, that the distance of three kilometres was not too long a distance and that those areas were not accessible and would subject its fleet to substantial wear and tear.  The arbitrator made a finding that a distance of three kilometres was a considerable distance.  This was coupled with the fact that the respondents had to pay a fare of $1.00 to and from the pick-up points.  Clearly, without considering the issue of the distance, there is a cost incurred by the respondents to access the ‘free’ transport.  The arbitrator made a factual finding that three kilometres was a long distance to walk.  This is attacked by the appellant as being a finding without a basis.  It is also clear that the appellant does not substantiate this averment.  The arbitrator based his finding on the evidence given by the respondents.  Can this factual finding be classified as irrational in the circumstances?  Appellant has not demonstrated in any way that this finding should be classified as such.  Appellant has merely made a bold allegation.

The second issue raised by the appellant is that a discretion purportedly reposed in it to decide whether to provide transport or pay transport allowance.  The provisions of the Statutory Instrument are as follows:

“Transport allowance shall be paid to employees not residing on employer’s premises and who are not provided with free transport.”

These provisions are clear and unambiguous.  Respondents have alleged that the “free” transport given by the appellant does not amount to such as they have to pay for some other transport in order to access appellant’s transport.  They have therefore requested to be paid their transport allowances and forego the free transport.  Does the employer have a sole discretion in the matter?  The facts militate against making such a finding.  Appellant has conceded that the respondents live a distance away from the pick-up points.  Appellant does not dispute that the respondents have to meet an extra cost in order to access the “free” transport.  The section itself does not categorically give an employer a discretion.  Further, there is already an imbalance in that whilst other employees in other residential areas access the free transport, respondents have to pay to access it.  The appellant has sought to argue its case on the issue of the practicability of the arbitrator’s decision.  The question to be posed is whether this is a legal reason enough to excuse it from fulfiling its part of the bargain, having regard to the fact that a Collective Bargaining Agreement binds the employers and the employees?  It has not been alleged by the appellant that its part of the bargain that is, to pay the respondents their transport allowance, is encumbered by an impossibility to perform.  It is trite that legal contracts, and it is submitted that this amounts to one, should be performed and should not breached at the mere convenience of the other party.  If the courts were to allow this, contracts would remain unfulfilled.  Even if the court were wrong to state that the appellant is obliged to pay the transport allowances, the issue of fairness would still continue to hound the appellant.  It would be inexcusable for appellant to continue to expect part of its workforce to partially “pay” for the “free” transport whilst the other workforce does not simply because the former happened to live in areas which were “inaccessible” to the appellant’s fleet of transport.  On the issue of fairness, GOLDSTONE JA had this to say in National Union of Mineworkers v East Rand Gold & Uranium Co. Ltd (1991) 12 ILJ 1221 (A)

“In the exercise of its powers and the discretion given to it, the industrial court is obliged to have regard not only or even primarily to the contractual or legal relationship between the parties to a labour dispute.  It must have regard to the application of principles of fairness.  I agree with the observation made in Brassey et al at 354 – 5 that:

“it is indeed peculiar to an unfair labour practice determination that it may have the effect of suspending the common law that the law of contract perspective.”

It is my considered view that the decision of the arbitrator in this respect is unassailable.

In the result the appeal ought to be dismissed with no order as to costs.

Dube, Manikai&Hwacha, appellant’s legal practitioners