This is
an application for contempt of court.
The
facts of this matter are common cause. The applicants were employed by the
respondent as Assistant Human Resources Managers Grade 5. A dispute involving
the applicants' grade was referred to arbitration on 2 March 2012. The
applicants obtained an arbitral award in their favour. The award was registered
with this court in terms of section 98(14) of the Labour Act [Chapter 28:01]
for purposes of enforcement. The operative part of the award reads as follows.
“1.
The respondent to carry out a job evaluation of the claimants' job within 14
working days from the date of receipt of this award.
2.
Failure to implement the award within the stipulated timeframe, the claimants
will be automatically elevated to Grade 4 with effect from the date of the
award.”
The
applicants have lodged this application for contempt of court on the basis that
the respondent did not comply with the above award. The applicants seek the
following order;
“1. That
the respondent be and is hereby declared to be in contempt of court.
2.
That the respondent be and is hereby ordered to comply with the arbitral award
registered by this Honourable Court on 19 April 2012 upon being served with
this order failing which the Sheriff of the High Court be and is hereby
authorized to arrest and commit the Respondent to Harare Central Prison for a
period of 30 days or until the respondent has purged his contempt.
3.
Costs.”
The
applicants submitted that the respondent failed to comply with the award in
that no job evaluation was carried out in respect of the applicants' posts. The
applicants contended that the respondent adopted a general job evaluation
exercise involving a complete restructuring and re-design exercise that was not
directed at the applicant's jobs and endorsed it as the job evaluation in terms
of the award and that the posts evaluated are not the applicants' posts. The
applicants further aver that the job evaluation for the applicants was
accelerated in order to comply with the time frame stated in the arbitral award. The applicants further
contend that some aspects of their job description had been removed when the
evaluation was carried out. They challenge the manner in which the evaluation
was conducted.
The
respondent contends that the application for contempt of court lacks a proper
basis as it neither disobeyed nor neglected to comply with the arbitral award.
The respondent contends that it conducted an evaluation exercise and produced a
report within the prescribed time thereby complying with the award.
The
primary objective of contempt proceedings is to compel compliance with the
court's order.
In
Levy v Benator 1987
(1) ZLR 120 (S), contempt of court was defined as “a wilful and mala fide refusal
or failure to comply with a civil court order constituting a contempt for which
the State can prosecute.” The applicant is required to show, factually, breach
of the order. The following sentiments in Minister of Lands and Ors v CFU 2001 (2) ZLR 457 (SC) per
CHIDYAUSIKU CJ are pertinent. He remarked as follows:
“CJ
MILLER, in his book, Contempt of Court 2nd
ed at 423-4, had this to say on the issue of contempt of court;
'Before
a finding of contempt of court can be made it is necessary to determine whether
there has been a factual breach of an order or undertaking on the part of the
body or person brought before the court. This necessarily demands that the
terms of the order be expressed in clear unambiguous language and, in so far as
possible, the person should know, with complete precision, what it is he is
required to do or to abstain from doing.'”
Before
a finding of contempt of court can be made, the court must establish whether
the applicant has shown, as a fact, that the respondent breached the court
order. The applicant must also show that the respondent has wilfully disobeyed
or neglected to comply with the court order. See Consolidated
Fish Distributors (Pvt) Ltd v
Zive & Ors 1968 (2) SA 17.
An
applicant seeking an order for contempt of court is required to establish the
following;
a)
That an order was granted against the respondent.
b)
That the respondent is aware of the order.
c)
That the respondent wilfully disobeyed or neglected to comply with it.
The
respondent concedes that the first two requirements were met. It denies that it
disobeyed or neglected to comply with the order.
The
applicants were employed by the respondent as Assistant Human Resources
Managers, Grade 5. On 22 March 2012, the respondent wrote to the applicants
advising them of the outcome of the job evaluation and attached a report. The
report was received by the respondent on 2 March, which was a Friday. The days
start running from 5 March 2012, which is a Monday, until 22 March 2012.The
evaluation report came within 14 days as stipulated in the award.
The
evidence on the papers discloses that there was a longstanding dispute between
the parties over the issue of grades. There was already a general evaluation
exercise that was in process. After the award, discussions and reports over the
Assistant Human Resources Manager post ensued. The respondent submitted that
the applicants were not cooperative and were bent on frustrating the process; that
they refused to submit job descriptions or be interviewed. As a result, a meeting
was held, on 20 March 2012, between the applicants and the consultants. The
minutes of that meeting record that the consultants asked for the applicants'
job description of the post which was going to be evaluated. The applicants'
concerns were that they had not been consulted on the choice of consultants who
would carry out the evaluation and that no method had been prescribed for the
evaluation. The meeting agreed that the applicants would participate in the
evaluation though under protest. Lorimak Consultants Holdings produced an
evaluation report dated 21 March 2012. It shows that a job evaluation and
grading exercise for the following post, Chief Accountant, Assistant Human
Resource Manager was carried out. The evaluation placed the position of Assistant
Human Resources Manager in Grade 7, which is a lower Grade. The consultants
wrote in their report that the job evaluation exercise required interviews of
the applicants. It records that the applicants were engaged and that they were
not co-operative and were not interviewed in respect of their posts and this
delayed the report. They evaluated their job description which they were given
by their supervisor.
It
is difficult to understand the applicants' argument that their post was not
evaluated. Whilst they state that the post evaluated is not the applicants'
post, they say, in another vein, that their evaluation was accelerated. It is
clear from the foregoing that the respondent did engage in a process of job
evaluation for the Assistant Human Resources Manager post and a report was
compiled.
A
party bringing contempt of court proceedings is required to show that there has
been a factual breach of the order. The arbitral award was complied with.
Whilst the applicants' concerns with regards the manner in which the evaluation
was conducted may be valid, the court notes that there was no method prescribed
by the arbitrator for carrying out the exercise. Contempt of court proceedings
are a wrong procedure for challenging the fairness and substance of a job
evaluation process. I am unable to find, as a fact, that the respondent
disobeyed or neglected to comply with the award. I am satisfied that the order
was complied with. In the result, I find as follows;
The
application is dismissed. Costs follow the event.
