Ruwa Town Council v Talent Hwatirera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/54/2016
HARARE, 7 OCTOBER 2015 &
CASE NO LC/H/01/2015
5 FEBRUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO LC/H/54/2016

HARARE, 7 OCTOBER 2015 &			             CASE NO LC/H/01/2015

5 FEBRUARY 2016

In the matter between

RUWA TOWN COUNCIL						APPELLANT

Versus

TALENT HWATIRERA						RESPONDENT

Before the Honourable R F Manyangadze J

For the Appellant	Ms W L Chirongoma  (Legal Practitioner)

The Respondent in person

MANYANGADZE J:

This is an appeal against an arbitral award granted on 19 December 2014, in terms of which the appellant was ordered to pay the respondent an acting allowance in the total amount of US$3 647-78.

The factual background to the matter is common cause. The respondent is employed by the appellant as a clerk/typist. That is his substantive post. He worked as a Committee Clerk, in an acting capacity, from October 2010 to June 2012. He was further assigned to act as Private Secretary to the Director of Finance, from July 2012 to July 2014.

For the extra responsibilities, he was paid an acting allowance in the total sum of US$1 479-00. The allowance was calculated using a formula provided for in a Council Resolution.

The respondent lodged a complaint with a Labour Officer, alleging that a wrong formula was used to compute his acting allowance. The acting allowance should have been based on the formula expressed in the General Conditions of Service document. When conciliation failed, the matter was referred to arbitration, resulting in the contested arbitral award.

The grounds of appeal are stated as follows:

“1.	The arbitrator grossly misdirected herself at law in finding that the respondent is entitled to be paid an acting allowance based on a formula contrary to and ultra vires the legally binding council resolution on payment of acting allowances.

2.	The arbitrator grossly erred and seriously misdirected herself at law by ordering the appellant to pay the respondent an acting allowance based on reasonable (iustus) error as per her finding that the error was genuine.

3.	Consequently the arbitrator further grossly erred at law by not deciding that a reasonable error vitiates the agreement on payment of acting allowance contrary to the council resolution.”

Before delving into the merits of the appeal, it is necessary to dispose of the points in limine raised by the respondent. The respondent’s heads of argument raise two points in limine. These are that the appellant is barred, by reason of failure to timeously file heads of argument, and that the appeal does not raise questions of law.

At the hearing of the matter, the court entertained an oral application for condonation of the late filing of heads of arguments and upliftment of bar. It granted the application and ordered that the heads filed by the appellant on 8 July 2015 be deemed to be duly filed. It indicated that the reasons for so ordering will appear in the main judgment.

At the hearing of the matter, the appellant submitted that when its appeal was filed, in January 2015, the respondent did not file a Notice of Response. He only did so in May 2015, four months out of time. Simultaneous with the Notice of Response, the respondent filed an application for condonation and upliftment of bar. The appellant could therefore not file heads of argument, as it was awaiting outcome of the respondent’s application for condonation and upliftment of bar.

The appellant further submitted that it had indicated to the respondent’s then legal representative that, in the interests of finality to litigation, it was not opposing the application for upliftment of bar.

From submissions made by the parties, it emerged that the respondent’s application for condonation and upliftment of bar was granted on 24 June 2015. Thus the appellant’s heads of argument, filed on 8 July 2015, came ten days after the upliftment of bar for the respondent.

There was no dilatoriness at all on the part of the appellant. They could not file heads of argument when the respondent’s Notice of Response was subject to condonation. They did not oppose the respondent’s application for condonation, in the interests of having the matter finalised on the merits. They filed their heads of argument after the application for condonation was granted in June 2015. The conduct of the appellant cannot be faulted. The explanation for not filing heads of argument soon after receipt of the Notice of Response is reasonable and unassailable. This court readily directed that their heads of argument be deemed to be duly filed.

The same cannot be said of the respondent. He was clearly not candid with the court. He did not disclose that his Notice of Response was accompanied by an application for condonation. He only adverted to this background after the appellant disclosed it. It is in fact the respondent who caused the delay in the litigation, by his failure to timeously file his Notice of Response. He then sought to attack the appellant’s dilatoriness, which was in the circumstances, a consequence of the respondent’s dilatoriness. The respondent’s conduct must be strongly censured.

Both parties did not address the court on the second point in limine. It seems to me it was virtually abandoned. This appeal involves the interpretation of a clause in the respondent’s conditions of service. The law on the interpretation of statutes or contracts will have to be consulted in resolving the issue. Clearly, the appeal is based on a question of law, and is therefore within the ambit of section 98 (10) of the Labour Act, [Chapter 28:01].

The points in limine raised by the respondent are without merit and are accordingly dismissed.

On the merits, this matter turns on the meaning to be ascribed to the respondent’s conditions of service, vis a vis the Council resolution from which they are derived. It is basically a question of interpreting the conditions of service communicated by the appellant to the respondent.

The clause stipulating how acting allowance is to be computed is found in a document captioned “RUWA TOWN COUNCIL ADDENDUM TO THE CONDITITONS OF SERVICE - STAFF BENEFITS”.

It reads as follows:

“Acting allowance should be paid using the private sector method i.e. have the difference between the two salaries of one who is acting and the post concerned.” (emphasis added)

The same issue is provided for in Council Resolution of 1996, under item (9), Acting Allowance, wherein it was stated:

“That the payment of acting allowance is calculated by using the method in the private sector which is half the difference between the two salaries of the one who is acting and the post concerned.” (emphasis added)

The appellant’s contention is that the use of the word “have” in the Conditions of Service was a genuine and reasonable error. The proper word should be “half” as per the Council resolution. The error should not be held against the appellant.

The appellant pointed out that use of the word “have” makes the clause meaningless and absurd. It should therefore not be accorded a literal interpretation. It leads to an absurdity, whereby the respondent ends up earning an acting allowance so substantial it could never have been intended by the appellant. If that is done to every employee holding a higher post in an acting capacity, it would result in an unsustainable wage bill. The appellant urged the court to interpret the Conditions of Service within the context of the Council resolution.

The appellant referred the court to the case of Chegutu Municipality v Manyora 1996 (1) ZLR 262, where it was pointed out that words must be taken in their context. In particular, reference was made to McNALLY JA’s remarks:

“There is no magic about interpretation. Words must be taken in their context. The grammatical and ordinary sense of the words is to be adhered to, as LORD WENSLEYDALE said in Grey v Pearson (1857) 10 ER 1216 at 1234, “unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no further.”

In this regard, Ms Chirongoma, for the appellant, contended during oral submissions:

“There was evidence before the arbitrator that the Council resolution of the appellant did not bear the word “have”, but bore the word “half”. The effect of the word half would bring the Conditions of Service within the precincts of common sense, in that an allowance will not translate to a half salary.”

The respondent, on the other hand, contended that the appellant is bound by the Conditions of Service. Whatever is provided therein should be construed against it, including the alleged error. Paragraph 24 of the respondent’s heads of argument underscores this contention. It reads:

“It is also pertinent to pin point that it is not the duty of the appointed arbitrator to correct the alleged genuine typical error in the condition of service and leave regulation as the entire document is the product of the appellant (employer).”

The respondent referred to the case of Kundai Magodora & Ors v Care International Zimbabwe SC 24-14. In that case, the Supreme Court held that the parties to a contract are bound by the terms of the contract, which they would have freely entered into. It is not the business of the court to change or rewrite the contract for them. In casu, the appellant was therefore bound by its contract with the respondent, as expressed in the Conditions of Service.

Given the facts of this matter, I am not inclined to uphold the respondent’s contention. I am rather persuaded by the appellant’s contention. The use of the word have, in my view, clearly distorts the meaning of the whole clause relating to computation of acting allowance. In fact, its grammatical sense and construction appears illogical and absurd. It is difficult to decipher or make sense of the phrase concerned, with the word “have” in it. It gives the distinct impression that something is wrong with it.

Even the arbitrator recognised this anomaly. This is reflected in these remarks in the arbitral award:

“It is my considered view that the employer bears the obligation to implement the resolutions of behalf on the council. The resolutions of the council, in my opinion, are implemented and communicated to the employees through the general conditions of service. The respondent’s failure to effectively communicate the resolutions through the general conditions of service can then not prejudice the claimant.”

It is clear the arbitrator recognised Council resolutions as the foundational documents from which the respondent’s Conditions of Service are derived. What the arbitrator did however was to hold the error in the manner in which the Conditions of Service were crafted and communicated to the respondent, against the appellant.

Having made that realisation or recognition, in my view, the arbitrator should have interpreted the clause in question within the context of the applicable Council resolution. This approach would be in line with the principle of interpretation laid down in the Manyora case, supra.

In exceptional circumstances, “the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency” that may arise from their use.

In Metro International (Pvt) Ltd v Old Mutual Property Investment Corporation & Anor SC 83-06, the Suprme Court cited with approval, the remarks of JOUBERT JA in Coopers& Lybrand v Bryant 1995 (3) SA 761, at 768 E wherein the learned Judge stated:

“According to the ‘golden rule’ of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity or some repugnancy or inconsistency with the rest of the instrument … The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself… The correct approach to the application of the ‘golden rule’ of interpretation after having ascertained the literal meaning of the word or phrase in question is broadly speaking, to have regard:

To the context in which the word or phrase is used with its inter-relation to the contract as a whole, including the nature and purpose of the contract….

To the background circumstances which explain the genesis and purpose of the contract, i.e. to matters probably present to the minds of the parties when they contracted.

To apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted in the document, save direct evidence of their own intentions.”

As already indicated, use of the word “have” yields an illogical grammatical construction of the entire phrase in question. It simply does not read well. It can only be reasonably explained as an error. The phrase only makes sense when the word “half” is used, as appears in the Council resolution. The respondent should not “be permitted to snatch at a bargain by taking advantage of the mistake”. See R H Christie, Business law in Zimbabwe, 1st ed. p 89.

It is the court’s considered view that the appeal must succeed in the circumstances.

It is accordingly ordered that:

The appeal be and is hereby allowed.

The arbitral award granted in favour of the respondent on 19 December 2014 be and is hereby set aside.

The respondent shall bear the appellant’s costs.

C Kuhuni Attorneys, appellant’s legal practitioners