Zimbabwe Urban Councils Workers Union v Chipinge Town Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/229/2016
HARARE 10 MARCH 2016
CASE NO. LC/H/229/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/229/2016

HARARE 10 MARCH 2016				       CASE NO. LC/H/1068/13

AND 22 APRIL 2016

ZIMBABWE	URBAN COUNCILS WORKERS UNION		Appellant

CHIPINGE TOWN COUNCIL						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant 		Mr T. Mafongoya, Attorney

For Respondent		Mr T. Tazvitya, Attorney

MUSARIRI, J:

On 13th November 2013 Arbitrator N.A. Mutongoreri made an arbitration award.  Therein he dismissed Appellant’s complaints about Respondent’s job evaluation exercise.  Appellant then appealed to this Court against the award.  Respondent opposed the appeal.

The grounds of appeal were three-fold as follows,

The Arbitrator grossly misdirected himself factually, a misdirection that amounts to a point of law in making a finding that both parties submitted documents to him when it was only Appellant who did so.

The Arbitrator grossly erred and seriously misdirected himself factually, a misdirection that amounts to a point of law in making a finding that the Appellant acted against the will of the Workers Committee when in actual fact the Workers Committee forwarded the Job Evaluation Report for the Appellant’s Secretary General’s comments and the same was sent to the Town Secretary.  Parties then could not agree on the implementation of the Job Evaluation exercise.

The Arbitrator grossly erred and seriously misdirected himself factually, a misdirection amounting to a point of law in making a finding that there was a Works Council agreement yet in the same award he also made a finding that the dispute in casu, being a dispute of interest, it never passed though the works council.  Such findings are contradictory.

I agree with Respondent that the 1st ground does not constitute a valid ground of appeal.  It complains about a comment/finding concerning the production of document.  Such relates to the procedure employed by the arbitrator in managing the arbitration process.  It does not deal with the merits of his determination.  It is trite law that an appeal should focus on the merits of a determination.  Shortcomings in procedure are dealt with by way of review.  Thus, the ground cannot be entertained in this appeal.

The 2nd and 3rd grounds of appeal raise basically 2 issues. Whether Appellant has locus standi to bring action in this Court on behalf of its members? And whether Appellant’s members settled the matter with respondent?  I will deal with the issue seriatim.

Whether Appellant has locus standi in this matter?

On this issue I was referred to the case of, Tel-One v CASWUZ 2006 (2) ZLR 136 (S) where Chidyausiku C.J. ruled that (141 B)

“Put differently, Mr Hwacha’s contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings.  I recognize the cogency of this submission.  The proposition that only parties to the proceedings can challenge on appeal the outcome of such proceedings admits of little doubt.”

The proceedings on appeal to this Court is the arbitration which produced the award under appeal.  The award names the Appellant as Applicant in that matter.  Therefore Appellant was indeed a party to the proceedings under appeal.

Whether Appellant’s members settled the matter with Respondent?

Respondent stated that the matter had been settled.  As proof they relied on certain documents.

Firstly, they relied on minutes of the Works Council (WC) meeting held on 23rd July 2013.  Under the subutile “Agreed” the following appeared

“Agreed

To adopt the recommendation by Best Fit Management Consultancy.

That the new salary structure be effected from the month of July 2013.

On the same note the Workers Committee Secretary emphasised the need to counsel employees properly to avoid fear of the unknown and the workers committee was ready to assist where the need arises since Council was working with an arbitration award which required it to finish the exercise by 30 June 2013 and had no problem with the Job evaluation implementation but to be carefully implemented.”

It is common cause that the WC is comprised of representatives of the employer and employees.  Therefore through their representatives, the employees agreed to the implementation of the job evaluation exercise.  In addition Respondent on the employment contract drawn up after the evaluation.  Its preamble reads thus,

“I … do hereby acknowledge receipt of a new contract of employment following the job evaluation system which was completed on 19 July 2013 by best Fit Management Consultancy Company in which I was placed in position of …”

Once an employee signed such contract he agreed to vary the employment contract as per the evaluation report.  They waived their rights prior to the evaluation.  Thus there is no valid basis upon which the employee or his union can then turn around and challenge the implementation of the report.

I therefore consider that the Arbitrator correctly assessed Appellant’s complaints and rightly dismissed them.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E