ZESA Holdings v Wellex Mukiwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/132/2013
HARARE, 2 APRIL, 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO. LC/H/132/2013

HARARE, 2 APRIL, 2013					CASE NO. LC/H/627/2011

AND 8 NOVEMBER, 2013

In the matter between

ZESA HOLDINGS			-			Applicant

And

WELLEX MUKIWA				-		Respondent

Before The Honourable B.T. Chivizhe: President

For Applicant 	-	Mr. M. Baera – Legal Practitioners

Baera Legal Practitioners

For Respondent	-	Mr W. Mukiwa – In Person

CHIVIZHE, B.T.:

This is an appeal against an arbitral award handed down on 22 September, 2011.  The Respondent was employed by the Appellant as a Messenger from April 2006 under a Grade B1 salary.  In April 2010 the Respondent was transferred from the Head Office to work at the Training Centre as a Workshop Assistant.  It is common cause that the person he replaced at the Training Centre took his job as a Messenger and was downgraded from Grade B3 to B1.

The Respondent’s contract of employment was later terminated.  The Respondent then lodged a complaint with the Labour officer of underpayment of salaries for the period he worked as a Workshop Assistant.  When the Labour Officer failed to conciliate the matter was referred for compulsory arbitration.  The Arbitrator came to the conclusion that the Respondent was underpaid when he was paid a B1 salary instead of a B3 salary.  He then handed down an award in the following terms;

“WHEREFORE, after carefully analyzing the facts and the law, I make the following award.

The Respondent is hereby ordered to pay Claimant at the higher grade of BN3 (Workshop Assistant), salaries and benefits with effect from the date he was transferred from being a messenger

Each party to meet its own costs

I so award.”

The Appellant has noted its appeal against the decision on the following grounds;

“

The Honourable Arbitrator grossly misdirected himself by making a finding of fact that resulted in him coming to a wrong conclusion that the Respondent was being underpaid because he was performing work in higher grade, when in fact it was clear that the Respondent’s transfer to the training centre was not a promotion but a mere lateral transfer.

The Honourable Arbitrator erred in law by relying on the collective bargaining agreements of other undertakings when in fact the Appellant has its own collective bargaining agreement for the Energy Sector which he disregarded.

The Honourable Arbitrator grossly erred by disregarding the fact that the grade B3 is progressional to the extent that the Respondent was only going to progress to that Grade from B1 upon attainment of the requisite qualifications and experience.  Further, and making that finding he created a precedent which is outside the Appellant’s policies and procedures on promotion, advancement and progression.”

I shall address the grounds of appeal seriatim.

The Appellant contends under the first ground of appeal that the Arbitrator erred by concluding that the Respondent had been underpaid whilst performing work in higher grade when in fact it was clear the transfer was a lateral transfer and not promotion.  The person that the Respondent was replacing had according to Appellant requested to be transferred to Head Office at lower B1 grade.

It is clearly not in dispute between the parties that the Respondent was transferred to a higher grade and that the work he was performing was that of the higher grade.  What is in dispute however, are the terms on which Respondent was transferred.  The Appellant submits the Respondent was aware it was a lateral transfer and not promotion, that his letter of transfer stated that his grade would remain the same grade B1.  The Respondent on the other hand submits that he was made to sign a contract for the Workshop Assistant position, that he had assumed higher responsibilities as Workshop Assistant but Appellant was paying him for the 13 months B1 salary instead of B3 salary.

After the proceedings the Appellant filed additional evidence with the leave of the court.  The evidence included a copy of the employment contract dated 25 July, 2010, copy of employment contract dated 1st April 2010, the contract staff letter W. Mukiwa and T. Gomba dated 14th May, 2010, job matrix and ZESA Holdings proposal for progression Grades – Engineers, Artisan Assistants, Technicians, Electricians and Linespersons.

In his response to the additional evidence adduced the Respondent submitted that he was never given the contract staff transfer document submitted in evidence by the Appellant; that the contract staff transfer document should have originated from ZESA head office because that is where he was being transferred from; the Appellant should have produced a signed copy from Respondent’s personal file or alternatively Appellant should have retrieved a signed copy from payroll and benefits Administrator’s file.

The document referred to reads as follows;

From: Group Training & Development Manager				At: N.T.C.

To:	Payroll & Benefits Administrator				At: ZESA Holdings

Date:	14 May 2010							Ref: 115/1/CM/ghm

SUBJECT: CONTRACT STAFF TRANSFERS: Wellex Mukiwa & Tawanda Gomba

Please be advised that the above named contract employees have been transferred within ZESA Holdings as follows:

Note:	Tawanda Gomba’s designation and grade have changed to ‘Messenger Grade B1.1’

W. Mukiwa’s designation changes to Training Workshop Assistant, grade remains B1.1 until further notice.

C. Munondo

Group Training & Development Manager

c.c.:	T. Gomba

W. Mukiwa

File

The Appellant failed to place before to Court a signed copy of staff transfer for the Respondent and T. Gomba which would tend to show that the Respondent was aware at the time of transfer that his grade would remain B1.  The soft copy submitted in the absence of a properly signed copy of staff transfer is in my view of little evidential value.  It does not assist the Appellant case at all.

The document does not assist in establishing that Respondent was aware at the time of transfer that it was a lateral transfer and not promotion.

On the second ground of appeal the Appellant submits that the Arbitrator erred in relying on collective bargaining agreements of other undertakings instead of the relevant one for the Energy sector.  It was Appellant’s further contention that the relevant Collective Bargaining Agreement which is Statutory Instrument 1 of 2008 provided that an employee shall be placed in an appropriate grade determined in terms of the grading system.  For the grade B3 Respondent is claiming one would need to have attained at least 2 years experience and then the employee could be graded accordingly.  Respondent however did not meet requirements and it would have been improper for him to be upgraded in those circumstances.

It is not clear to the court how the Arbitrator ended up referring to the Collective Bargaining Agreements of other industries when there is a relevant Collective Bargaining Agreement for the industry.  The record shows Appellant was represented by a legal officer at the proceedings.  I do not see how the Arbitrator would have referred to those other collective bargaining agreements when the correct agreement had been placed before him.  The only logical conclusion to be reached is that Statutory Instrument 1 of 2008 was not placed before the Arbitrator.  Indeed there is nothing in the record to show that Statutory Instrument 1 of 2008 was ever placed before the Arbitrator. As that document was not before the Arbitrator it follows that the issue is being raised for the first time and is thus improperly before the court.  In the event that I am wrong however and the Statutory Instrument 1 of 2008 was indeed placed before the Arbitrator, the Arbitrator clearly erred in relying on irrelevant Collective Bargaining Agreements.  The most important point, however in my view is on what terms the Respondent was transferred to the position.

The last ground of appeal is that the Arbitrator grossly erred by disregarding that the grade B3 is progressed in that Respondent had to attain requisite qualification and two years experience first in order to be promoted.  Whilst it is accepted that indeed the Appellant may have in place policies and procedures on promotion that dictated that one would need qualification and two years experience to attain B3 grade.  What is baffling to the mind however is why the Appellant took the decision to transfer Respondent to a job which has higher responsibilities and ordinarily calls for higher qualifications?  It is not in dispute the Respondent was indeed performing these higher responsibilities.  He was however not being remunerated appropriately.  There is in my view clearly an exploitation of the employee in these circumstances.  The employee was made to carry out duties that carry higher responsibilities but was not being appropriately remunerated for that service.  It would have been different if the employee had been advised upon transfer that in the meantime you shall be paid B1 salary but you should strive to obtain the requisite qualifications of two years’ experience then you will be paid B3 salary.  The Appellant has failed to produce any evidence that this was the case leaving the court to conclude that the Appellant treated Respondent unfairly.  The Appellant committed an unfair labour practice and ought to be made to restitute by paying the Respondent the underpayments.

Having reached this conclusion it is clear that the Arbitrator did not err when he reached the conclusion that Appellant had underpaid the Respondent.  The appeal clearly cannot succeed.

It is accordingly ordered as follows;

The appeal be and is hereby dismissed with costs.

The arbitral award is hereby upheld.

Baera & Company Legal Practitioners, Representatives for the Applicant.

Respondent In Person