T M Supermarket v S Siriya & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/406/2016
HARARE, 18 MAY 2016
CASE NO LC/H/977/2015
8 JULY 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/406/2016

HARARE, 18 MAY 2016 &					         CASE NO LC/H/977/2015

8 JULY 2016

In the matter between:

T M SUPERMARKET							APPELLANT

Versus

S SIRIYA & 8 OTHERS							RESPONDENTS

Before the Honourable P Muzofa J

For the Appellant	S Chidemo (Legal Practitioner)

For the Respondent     M Mazarura  (Trade Unionist)

MUZOFA J:

This is an appeal against the decision on an arbitrator.

The respondents are section managers at one of the appellant’s branches, the Kariba Branch. During the course of their employment the appellants raised complaints which were not resolved to their satisfaction by the appellant. The grievances were referred to a labour officer when conciliation failed the matter was subsequently referred to arbitration.

Three issues were placed before the arbitrator to determine non-payment of overtime, discrimination and refusal to negotiate with employees in good faith.

The arbitrator made the following determination that:

The respondent (appellant herein) be ordered to engage and negotiate with the claimants on issues that affect them periodically.

The respondents calculate and pay cash or credit the claimants with leave days for all the days they worked on public holidays.

The respondent to ensure that it consults and only those who are willing (sic) work overtime and public holidays be compensated.

The claimants submit their individual overtime claims from September 2013 to date in line with prescription of dispute rules.

The respondents address the salary anomaly and place them in the same grade with other section managers country wide.

The respondent is thus ordered to effect the order within fourteen (14) days of receipt of this award, failure of which any party may approach the arbitrator for a certificate of registration of the award with Magistrates/High Court.

The appellant has approached this court on appeal. Four grounds of appeal were set out as follows:

The arbitrator erred in law in determining that the respondents had worked on public holidays without compensation when there was no evidence before him to that effect.

The arbitrator erred in law in exceeding his mandate by creating policy on the part of the appellant.

The arbitrator erred in law in making a determination on a matter which the appellant advised was already before the Labour Court.

The arbitrator erred in law in finding that the appellant had committed acts of unfair labour practice. The misdirection of fact is so gross as to amount to a misdirection on law.

During the hearing of the matter before this court a concession was made that the issue in respect of overtime be referred for quantification wherein each of the respondents would prove how many days they worked. That concession disposes of the first ground of appeal.

The second ground of appeal raise issue that the arbitrator created policy for the appellant.

According to the appellant by ordering that the appellant engage and negotiate with the respondents on issues that affect them periodically and to consult the appellants to ensure that only those willing to work overtime do work and are compensated, the arbitrator created a policy for the appellant.

For the respondent it was submitted that the arbitrator simply stated the obvious that is supported by the law.

As correctly submitted for the appellant, the courts only enforce what parties agreed on. It is therefore not for the courts to make agreements for parties or policies for that matter, NRZ v Zimbabwe Railways Artisans Union & Ors SC 46-15.

In casu the question is whether the arbitrator’s award had the effect of making a policy or an agreement between the parties?

In a nutshell the arbitrator ordered the appellant to engage and negotiate with the respondents and secondly to consult the respondents in respect of overtime. There is no policy creation by the order.

It was common cause between the parties that the respondents as middle management did not belong to any trade union. Management had not yet formally unionised, the process was underway to formalise such a union. In that vein the respondents and indeed all middle managers of the appellant where they had issues they were to directly engage the appellant.

It is a sad day for an employer to contest that it does not want to engage with its employees. Clearly this goes against the precepts and spirit of the Labour Act [Chapter 28:01] (“the Act”). The Act envisages that a workplace be a democratic space, as set out in section 2 A thereof subsection (e) provides one of the purposes of the Act as:

“the promotion of the participation of employees in decisions affecting their interests in the work place.”

Clearly this speaks to engagement in the workplace. The relationship between the appellant and respondents is subject to this Act.

In my view the fact that the respondents were not unionised does not derogate from the rights as given in terms of section 8 of the Act. In terms of that section it is an unfair labour practice to refuse to negotiate in good faith.

The order to consult the respondents and compensate them in respect of overtime does not create policy. In terms of section 6 (b) of the Act:

“No employer shall require any employee to work more than the maximum hours permitted by law or by agreement made under this Act for such employee.”

Overtime by its nature is work beyond the maximum hours. For any employee to work overtime there must be some consultation.

Section 14 ( c) of the Act provides for weekly rest and remuneration for work during public holidays and subsection (3) thereof provides:

“Where an employee consents to work on a public holiday he shall be paid not less than twice his current remuneration for that day….”

The provision requires the consent of the employee. It also confirms that our law requires engagement and consultation particularly in relation to overtime. The appellant cannot claim that the arbitrator created a policy by just stating the obvious. It is an implied term in this relationship that the employer engages and consults employees in line with the Act otherwise the democratic space would be seriously challenged.

In this case the arbitrator in the body of the award made a finding that there was no evidence that the appellant thwarted efforts for parties to engage. Having so found the order made is contrary to the finding. The ground of appeal succeeds on that basis only.

The third ground of appeal raise the issue that the arbitrator erred by determining the matter when submissions were made that the same matter was before the Labour Court.

According to the appellant the arbitrator was furnished with information that the same matter dealing with salary differentials of section managers was before Judge MOYA-MATSHANGA in the case of Itayi Nkomo & Ors v TM Supermarkets (Pvt) Ltd LC/MT/APP/ 147/14 X-Ref LC/MT/147/12 where an application for leave to appeal for the Supreme Court was pending. The appellant referred to the provisions of section 124 of the Act which deals with multiple proceedings.

For the respondent it was submitted that the appellant failed to show that the Itayi Nkomo & Ors case also involved the respondents. The appellant only highlighted the salary issue. To that extent the respondents were entitled to seek a remedy in what they perceived to be an unfair labour practice.

Section 124 of the Act provides:

“(1)	Where any proceedings in respect of any matter have been instituted, completed or determined in terms of this Act, no person who is aware thereof shall institute, or cause to be instituted, or shall continue any other proceedings, in respect of the same or any related matter, without first advising the authority, court or tribunal which is responsible for or concerned with the second-mentioned proceedings of the fact of the earlier proceedings.”

The section requires a party who institutes proceedings in a matter to advise the authority if any proceedings have been instituted, completed or determined in respect of the matter. This in my view is meant to give the authority, court or tribunal in the second proceedings to decide whether to proceed with the matter or not.

In casu the arbitrator was advised that the issue on salary discrepancies for section managers was before the Labour Court. However the arbitrator did not make a determination as to the effect of that case to the proceedings before him.

The respondent correctly set out the requirements for a plea of lis alibi pendens that the two cases must be between the same parties, founded on the same cause of action and that the relief sought is the same Painter v Strauss 1951 (3) SA 307.

In my view it might have been correct that the subject matter before the Labour Court was the same however the respondents were not part of those proceedings. The court cannot stand in the way of the respondents in their bid to assert their rights simply because other people have filed a claim on the same cause of action.

The arbitrator did not specifically address the issue raised by the appellant he just determined the salary discrepancy issue. I find nothing wrong in his decision to determine on that issue despite the fact that the case was before the Labour Court.

To that extent the third ground of appeal is dismissed.

The fourth ground raises the issue that the arbitrator erred in finding that the appellant committed unfair labour practices.

A point was taken for the appellant that the arbitrator found that the appellant did not refuse to negotiate with the respondents and that they were not forced to work overtime on public holidays.

Section 8 of the Labour Act sets out unfair labour practices by an employer. These include refusal to negotiate in good faith and forcing employees to work overtime. These were the issues raised as constituting the unfair labour practices by the appellant. The arbitrator found that the appellant did not commit the said unfair labour practices since no evidence was placed before him. An order therefore that the appellant committed unfair labour practices based on the said conducts would be incompetent.

The appellant also raised issue that the salary discrepancies were not proved therefore there was no unfair labour practice. Further to that it was submitted that section managers do not fall within the NEC graded employees therefore there are no set salaries. The salaries are individually negotiated discrepancies would invariably be there.

The respondents produced a schedule before the arbitrator that showed the salary discrepancies. It would seem the appellant conceded that there were salary discrepancies, but argued that this is a result of negotiations.

The respondents at the time were not unionised, there was no minimum salary for section managers. Indeed as stated in the NRZ case supra this is a matter for parties to reach an agreement on. The court cannot intervene and direct the appellant to pay certain salaries particularly in the absence of a minimum wage for that category of employees.

Despite the discrepancies shown on the schedule the court would be hard pressed to order that the appellant pays the section managers the same salaries if indeed they were individually negotiated.

To that extent there was no unfair labour practice so far as the salary discrepancies were concerned.

The ground of appeal succeeds.

From the foregoing clearly the appeal has merit and the following order is made.

The appeal be and is hereby upheld.

The arbitral award is set aside save for the issue on overtime.

The matter is referred to the same arbitrator for quantification of overtime worked.

No order as to costs.

Honey & Blanckenberg, appellant’s legal practitioners