Reformed Church in Zimbabwe - Copota School v Rikios Muchemwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/15/2016
HARARE, 17 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/15/2016

HARARE, 17 MARCH 2016			     	    CASE NO. LC/MS/59/15

AND 13 MAY 2016

In the matter between:-

REFORMED CHURCH IN ZIMBABWE -			Appellant

COPOTA SCHOOL

And

RIKIOS MUCHEMWA						Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr J. Mpoperi (Legal Practitioner)

For Respondent	Ms S. Chihombe (Trade Unionist)

HOVE, J:

The appellant employed the respondent as a general hand for 43 years until he retired in 2013.

While he was employed, both the employer and the employee contributed towards a pension fund in behalf of the respondent with Old Mutual.

Following his retirement, he was duly paid his pension benefits by Old Mutual in terms of the fund that he had contributed to.

The pension paid out to him was lower than what he would have received, had he been paid a gratuity.  He sought from the appellant the difference of what he was paid by Old Mutual and what he would have been paid as a gratuity.

Gratuity is a lump sum amount paid out to an employee in recognition of years of service.  The parties agreed that gratuity would be paid in term of their Collective Bargaining Agreement.

Section 20 (1) of SI 102/2014 provide for the payment of gratuity on termination of employment.  It provides that;

“an employee who has completed five or more years of continuous service shall on termination of such employment …. Be paid a gratuity ….”

The section however also provides in section 20 subsection (3) as follows

“notwithstanding the provisions of subsection (1) and (2), no gratuity shall be payable to an employee or the estate of an employee

under this section if his or her employer has made provisions for him or her by means of a pension scheme registered as a fund in terms of the pension and provident funds act [chapter 24:09] which are not less favourable than those in this section.”

The respondent claims that the pension scheme provided less favourable benefits and he is thus entitled to the more favourable benefits under section 20 (1) and (2) of the collective bargaining agreement in terms of subsection 3 of the same section.

The employer has not shown that the fund provided by Old Mutual has benefits that are more favourable than the gratuity that can be offered under section 20 (1) and (2) respondent has shown that Old Mutual scheme is less favourable.

The law is therefore clear it does not say, a scheme which used to be more favourable but which is, the language is in the present tense.  So if at the point of receiving it is less favourable, then the employee is entitled in terms of section 20 (3) to receive the gratuity.

The fact that the government or other third parties may in future investigate the process, methods and criteria used for converting values from Zimbabwean dollars to United States dollars and may establish a basis for compensating members of insurance policy holders who were prejudiced is not a good reason to deny the respondent what he is entitled to in terms of the clear provisions of the contract between the parties.

The fear that the respondent may benefit twice should the prejudice be redressed is baseless.  To start with no process has yet been set in place and there is no guarantee that this will materialize.  But even if it does and the respondent is paid more, the employer can claim back what it paid on the basis of undue enrichment.  But in the meantime, the law must be obeyed i.e. section 20 (3) of the CBA.

The argument that the employer was bona fide in its actions and meant the Old Mutual Fund to pay more, that there is no wrong that can be imputed on the employer is understandable but will, in this case not be a suitable defence to avoid paying the respondent in terms of the law. Payment was not going to be made if the appellant acted wrongfully but the basis was whether or not benefits provided by the fund were less favourable than those in terms of the gratuity provisions i.e. section 20 (1) and (2) of the CBA.

Further, this court is an appellant court.  It can only interfere with the findings of the “court” a quo where the factual conclusions are grossly unreasonable.  The court in the case of Barros and Anor v Chimpondah 1999 (1) ZLR 58 (s) stated that;

“These grounds are firmly entrenched.  It is not enough that the appellate court considers that if it had been in the position of the primary court, it would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Primary Court acts upon a wrong principle, if it allows extraneous or irrelevant matters to guide or affect it.  If it mistakes the facts, if it does not take into account some relevant consideration then its determination should be reviewed and the appellate court may exercise its own discretion …… in short this court is not imbued with the same broad discretion as was enjoyed by the trial court.”

See also Goto v Goto 2001 (2) ZLR 519.

Passmore Malimanjani v CABS SC 47/07

It is trite that an appeal court does not interfer with the exercise of discretion by a lower tribunal unless it is shown that the discretion was improperly exercised.

In casu I have read the arbitral award and I see nothing improper or grossly unreasonable to warrant interference by this court.

The arbitrator reasoned as follows;

“From the wording of section 20 (1) of SI 102 of 2014, it is a legal entitlement for employees in the welfare and educational institutions to get gratuity using the given formula.  It has been submitted that there was a pension scheme in place, therefore section 20 (3) of SI 102 of 2014 provides for the mandatory payment of a benefit which is not less favourable than that provided in section 20 (1) of SI 102 of 2014.  It therefore follows that the applicant is entitled to a more favourable benefit between the pension scheme and the 	CBA	 provided gratuity.  It has been correctly put across by the respondent that the reason was a result of the hyperinflation and the change of currency.  However such a circumstance cannot be faulted on the applicant.

The wording of section 20 (1) and 20 (3) of SI 102/2014 is clear and unambiguous and such should be applied ….”

As stated earlier, there is nothing grossly irregular in the manner that the arbitrator applied the facts to the relevant legal provisions.  There is accordingly no basis to interfere with the award by the arbitrator.

The appeal is accordingly dismissed with no order as to costs.

Saratoga Makaudi Law Chambers, appellant’s legal practitioners