MAVANGIRA
JA: After
hearing the parties on the 9 March 2018, the court was of the
unanimous view that the appeal was devoid of any merit and
accordingly ordered as follows:
“The
appeal be and is hereby dismissed with costs. Full reasons will be
available in due course.”
The
following are the reasons.
BACKGROUND
FACTS
The
appellant was employed by the respondent as a Human Resources
Superintendent on 1 November 2006. He was based at the Head Office in
Harare. In February 2009 he was transferred to Renco Mine. His
contract of employment provided for, amongst other things, locality
allowance, leave bonus and a company vehicle which was to be fuelled
and maintained by the company.
In
February 2009, as happened nationwide, the respondent shifted from
the use of the Zimbabwean dollar to the United States dollar when the
Zimbabwean dollar became moribund. On the 19 February 2009, the
respondent wrote a letter to the appellant notifying him that,
following the adoption of the United States dollar, his salary would
be US$4,147.43 per month. The letter was silent on allowances.
On
21 March 2009, through an office memorandum, all the respondent's
employees were notified of the changes in their salaries and
allowances. The memorandum provided that the respondent had
implemented salary scales based on regional 'SADC' rates for
employees in all grades. Consequently, transport and meals allowances
together with leave bonus payable when employees proceeded on annual
leave were to fall away with effect from 1 March 2009 for all
employees in grade 10 and above. Transport and meals allowances were
also removed for employees in grade 10 and above.
The
respondent further indicated that the employees would be kept abreast
of further changes.
Following
the adoption of the United States dollar, the appellant was being
paid a globular salary without any allowances. The respondent did not
provide the appellant with the motor vehicle, but rather supplied him
with fuel and paid for the maintenance of his personal car.
This
was regardless of the fact that the respondent's contract of
employment stated that he was entitled to allowances and a motor
vehicle maintained by the company.
In
June 2014, the appellant raised a complaint of unfair labour practice
with the Labour Officer. He demanded payment of the following:
1.
Outstanding locality allowance for the period from February 2009 when
he was transferred to Renco Mine up to the time when he made the
complaint in June 2014;
2.
Leave bonus from 2009 to 2013; and
3.
Mileage for use of his personal motor vehicle from 1 March 2007 up to
the time of the making of the claim.
At
conciliation, the parties failed to reach a settlement and the matter
was referred to arbitration.
Before
the arbitrator, the appellant argued that he was entitled to payment
of outstanding locality allowances and leave bonus and to a motor
vehicle coupled with its maintenance and repairs. The appellant had
been using his personal vehicle for the respondent's business as
the respondent had failed to provide the motor vehicle. For this
reason, he claimed compensation on the mileage of his vehicle on the
same basis as if it was on hire to the respondent.
The
appellant also contended that the respondent had unilaterally varied
the contents of the contract of employment.
The
respondent raised a preliminary point.
It
was to the effect that in the event that the appellant's contract
was found to have been violated, the appellant's claims had
prescribed in terms of s94(1)(b) of the Labour Act [Chapter
28:01]
(herein after referred to as 'the Act').
The
respondent also argued that none of the respondent's contractual
benefits were being violated.
The
arbitrator dismissed the preliminary point.
In
his award he made the finding that all the claims made by the
appellant had been sustained. He thus ordered the respondent to pay
the sum of US$197,563.00 for compensation as had been claimed by the
appellant. This was to be paid in two equal monthly instalments of
US$98,781.50 with the final payment being paid not later than the 1
October 2014.
APPEAL
TO THE LABOUR COURT
Dissatisfied
with the arbitrator's ruling and award, the respondent appealed to
the Labour Court. A number of grounds of appeal were raised. The
court a
quo
summarized them to amount to:
1.
That prescription applied to the claims and those claims that were
older than two years had prescribed in terms of s94(2) of the Labour
Act [Chapter
28:01].
2.
That the contract of employment was varied by the office memorandum
and by conduct and that the arbitrator therefore erred at law in his
interpretation of the facts.
3.
That there was no prejudice to the employee's remuneration as
occasioned by the new method of payment.
4.
That the arbitrator had grossly misdirected himself in the relevant
findings of fact so much as to amount to a misdirection at law.
After
hearing parties, the Labour Court allowed the appeal and set aside
the arbitral award.
The
Labour Court accepted the argument presented by the respondent. It
came to the conclusion that once an infraction has occurred and
becomes known by the affected party, it prescribes if it is not
actioned within two years from the date when the dispute first arose.
The
court ruled that all the outstanding claims that were more than two
years when the claim was instituted by the appellant had prescribed.
On
whether or not there was unilateral variation of the contract, the
Labour Court found that the contract had been unilaterally varied by
the respondent.
In
its judgment the Labour Court stated that although there was
unilateral variation of the contract by the respondent, for five
years the appellant received his salary without any complaint. By so
doing, the appellant, who was a human resources practitioner, had
demonstrated by conduct, that he accepted the new salary structures.
As
a result, the allowances claimed by the respondent were no longer
claimable as there was now a new contract in existence.
The
Labour Court further found no merit in the appellant's claim which
was based on the contention that he had been hiring out his personal
motor vehicle to the respondent.
The
court a
quo
found
that there was no standing agreement between parties to that effect,
and therefore, to say that the appellant had hired out his vehicle to
the respondent would amount to overstretching the contract.
THIS
APPEAL
The
appellant was aggrieved by the judgment of the court a
quo
and appealed against its decision on the following grounds:
1.
The Labour Court fundamentally misdirected itself on a question of
law in failing to find that the claims of the Appellant had not
prescribed, they being claims arising from unfair labour practices of
a continuing nature covered by s94(2) of the Labour Act.
2.
The Labour Court further erred on a question of law in finding that
the contract of employment between the Appellant and the Respondent
had been varied such that the appellant would not be paid the claimed
allowances.
3.
The Labour Court further erred in law in failing to award the
Appellant compensation in respect of the usage of his motor vehicle
for the business purposes of the respondent.
At
the beginning of the hearing, Mr
Musarurwa
for the appellant indicated that he was abandoning the 3rd
ground of appeal which related to the issue of the motor vehicle.
Notably,
this ground formed the bulk of the appellant's claim. He therefore
restricted his argument to the first two grounds which relate to the
claims for outstanding locality allowance and leave bonus.
SUBMISSIONS
ON APPEAL
Mr
Musarurwa's
contention was that the Labour Court erred in ruling that the
appellant's claims had prescribed and he placed reliance on s94(2)
of the Act.
He
argued that the unfair labour practice commenced in March 2009 and
continued until the matter was brought to the attention of the Labour
Officer and to the Labour Court.
The
gravamen of his argument is that the dispute was of a continuous
nature and therefore on the basis of section 94(2) of the Act no
prescription could run.
He
further contended that the appellant's rights conferred by the
Labour Act were “frozen” during the period of his employment.
Therefore, any infractions of these rights could only be actioned
after termination of the employment relationship.
On
variation of the contract of employment, the contention was that the
introduction and operation of multi-currencies in February 2009 did
not operate to vary the contracts of employment in any way.
The
respondent remained indebted in respect of the appellant's
allowances.
Secondly,
the memorandum issued in March 2009 was a unilateral act by one party
to a contract of employment and did not have the effect of validly
taking away vested rights.
Mr
Mpofu
for
the respondent submitted that the rights accorded by the Labour Act
are not “frozen” as there are remedies provided by the Act for
any infraction of the rights. He described the appellant's
contention as “judicial heresy.”
Mr
Mpofu
further submitted that s94 of the Labour Act must be read together
with s8 of the same Act.
Section
94 limits itself to unfair labour practices and these the appellant
had not been able to identify. For this reason, he submitted, the
protection of s94 was not available to the appellant. The kind of
infractions that the appellant complained about are infractions that
gave him a full and competent cause of action within a period of two
years. He submitted that the appellant's suggestion that the two
year period must be counted starting from after the end of the
employment relationship is not worthy of any notice due to its
frivolity.
ISSUES
FOR DETERMINATION
The
issues for determination by this court are:
1.
Whether or not the appellant's claim had prescribed in terms of s94
of the Labour Act.
2.
Whether or not the contract of employment had been varied.
THE
LAW
Section
94 of the Labour Act provides as follows:
“94
Prescription of disputes
(1)
Subject to subsection (2), no labour officer shall entertain any
dispute or unfair labour practice unless -
(a)
it is referred to him; or
(b)
has otherwise come to his attention;
within
two years from the date when the dispute or unfair labour practice
first arose.
(2)
Subsection (1) shall not apply to an unfair labour practice which is
continuing at the time it is referred to or comes to the attention of
a labour officer.”
A
literal reading of the above provision is that adjudication of any
dispute of unfair labour practice is restricted to disputes that will
have occurred within two years from the date when the dispute or
unfair labour practice first arose. However the exception to that
rule is that, if an unfair labour practice is continuing at the time
it is referred, or comes to the attention of the labour officer, then
the two year prescription period in subs (1) does not apply.
The
appellant's submission is that when he first complained of the
non-payment of the locality allowance and motor vehicle allowance,
the unfair labour practice was 'continuing' and therefore none of
his claims had prescribed.
The
term “cause of action” was defined in Peebles
v Dairiboard (Pvt)
Ltd
1999 (1) ZLR 41 (H) at 54E–F wherein MALABA J (as he then was)
stated:
“A
cause of action is defined by Lord Esher MR in Read
v Brown
(1888) 22 QB 131 as every fact which it would be necessary for the
plaintiff to prove if traversed in order to support his right to the
judgment of the court.”
In
other words, a cause of action arises when there is an entire set of
facts which entitle one to make a claim.
In
light of that, in
casu
a new cause of action would have arisen every month when the
respondent failed to pay the appellant's locality allowance and
every year when it failed to pay the leave bonus. Whenever an arrear
of locality allowance accumulated, that would have constituted an
entire set of facts which could give rise to a cause of action and
which would have entitled the appellant to successfully file a claim
against the respondent.
Thus,
the appellant would have had a legitimate cause to raise a complaint
with the Labour Officer each time the allowances were not paid in
terms of the contract and each time when the annual bonus was not
paid in terms of the contract.
Each
non-payment on its own would be enough to constitute a cause of
action which entitled the appellant to file a claim.
Whenever
there was non-payment of the appellant's perceived dues, that would
be a complete infraction.
For
that reason, it cannot be said that the unfair labour practice would
have been continuous in nature and therefore not subject to
prescription.
A
continuous unfair labour practice was outlined in the South African
judgment of National
Home Builders Registration Council v Nehawu obo Siza Nghulele & 2
Ors
(JR
2020/13) 2016 ZALCJHB 209 wherein it was stated:
“[7]
In respect of the first point, it was held in SABC Ltd v CCMA &
Others that:
'While
an unfair labour practice/unfair discrimination may consist of a
single act it may also be continuous, continuing or repetitive. For
example, where an employer selects an employee on the basis of race
to be awarded a once-off bonus this could possibly constitute a
single act of unfair labour practice or unfair discrimination because
like a dismissal the unfair labour practice commences and ends at a
given time.
But,
where an employer decides to pay its employees who are similarly
qualified with similar experience performing similar duties different
wages based on race or any other arbitrary grounds, then
notwithstanding the fact that the employer implemented the
differential on a particular date, the discrimination is continual
and repetitive.
The
discrimination, in the latter case, has no end and is, therefore,
ongoing and will only terminate when the employer stops implementing
the different wages.
Each
time the employer pays one of its employees more than the other he is
evincing continued discrimination.'
Although
in this instance, the employee's claim to higher grading and
remuneration was squarely based on the applicability of the
applicant's Career Path and Retention Strategy for Technical Staff
policy, the principle of the continuous nature of the alleged unfair
labour practice in my view is indistinguishable from that in the SABC
case.
Accordingly,
he was entitled to raise the claim not only within 90 days of not
receiving the advancement but for so long as he was denied it.
Consequently, the first in limine point must fail.”
See
also South
African Broadcasting Corporation Ltd v The Commission for
Conciliation Mediation and Arbitration & 2 Ors
(JA
36/07) [2009] ZALAC 13; [2010] 3 BLLR 251 (LAC).
In
casu
the
claims would not have been dependent on each other so as to render
them to be continuous in nature.
The
cause(s) of action in the present matter, if existent, would have
been subject to prescription just like any other debt.
If
a claim was not made within the defined time lines, it would have
prescribed.
The
appellant would have had a complete cause of action entitling him to
make a claim whenever there was non-payment of allowances and bonus.
There
was no reason for the appellant to wait until there was termination
of the employment relationship.
The
Labour Act is not frozen during the subsistence of an employment
relationship as was stated by the appellant. A breach of rights
conferred by the Labour Act can be remedied during the subsistence of
the employment relationship and within the two years from the date of
commencement of the unfair labour practice.
The
claim against the respondent is that it did not pay locality
allowances and leave bonuses since March 2009. The appellant only
filed his claim in June 2014.
In
light of the principles discussed above, each of the monthly locality
allowance arrears and leave bonus payments would have been subject to
a prescription period of two years.
Mr
Musarurwa
for the appellant submitted before us that this court could consider
the claims that were less than two years old and had thus, according
to him, not prescribed as at the time of the raising of the claims in
June 2014.
In
response thereto Mr Mpofu
for the respondent submitted that the court could not do so as that
was never the appellant's case in any of the proceedings a
quo,
whether before the arbitrator or the Labour Court.
It
is trite that a litigant cannot argue on appeal a case different to
that presented in the proceedings a
quo.
He
further submitted that the submission by Mr Musarurwa
was made on the mistaken assumption that the variation of the
contract of employment was unlawful.
The
contract having been varied five years earlier, there was no basis
for the claims made for the allowances.
In
any event, by the time that he raised the complaint with the labour
officer, the two year prescription period had long since elapsed for
all the claims.
In
our view, the Labour Court was therefore correct in holding that once
an infraction is complete and is known, it prescribes within two
years if it is not actioned within the given period.
However,
if the contract was varied as alleged by the respondent, there can be
no debate or question of a continuing unfair labour practice at the
time that the appellant raised his complaint, as he would have had no
cause of action anyway by virtue of the variation of the contract in
terms of which variation such allowances were no longer part of his
contract.
He
could not, five years later, claim that the contract was unilaterally
varied when for five (5) years before then he acquiesced with the
implementation of the new conditions and quietly accepted
remuneration on the new terms without raising any complaint.
Whether
or not the contract of employment was varied
The
question must of necessity therefore be answered whether or not the
contract was in fact varied unilaterally.
The
appellant submitted that the change in currency following the
adoption of the use of the United States dollars did not alter the
contract of employment. He further contended that he was still
entitled to the car loan as per the contract of employment which was
operative during the time when Zimbabwean dollar was in use.
Mr
Mpofu
on
the other hand submitted that the local dollar contract could not
have had its terms transposed into the US Dollar period. It was his
contention that in order to successfully advance the contention that
there had been variation of the contract, the appellant had to first
identify the contract expressed in United States Dollars, set out its
terms and then show how it was unlawfully varied by the respondent.
As
already mentioned earlier, the respondent issued out an internal
memorandum on 21 March 2009 following the adoption of the United
States dollar currency.
This
memorandum had the effect of altering the appellant's contract of
employment.
Following
the memorandum, the appellant, who was the Human Resources officer,
accepted his new salary in terms of the memorandum. He was receiving
a salary in terms of the memorandum and for the five years, he never
raised any complaint nor did he challenge the new salary scale.
It
is trite that consent can either be express or implied.
In
the case of Smith
v Hughes
L.R
6 Q.B 597 at p607, it was stated that:
“If,
whatever a man's real intention may be, he so conducts himself that
a reasonable man would believe that he was assenting to the terms
proposed by the other party, and that other party upon that belief
enters into the contract with him, the man thus conducting himself
would be equally bound as if he had intended to agree to the other
party's terms.”
For
five years the respondent accepted a salary, in terms of a memorandum
which had no provision for any allowances. By such conduct he
accepted the variation of the terms of his contract of employment.
If
he genuinely felt that the memorandum breached his contractual
rights, he ought not to have accepted the salaries and ought to have
mounted his challenge at the pertinent time or within the permitted
period.
In
the absence of any challenge to the variation of the contract, it is
clear that after variation of the contract of employment, there was
acquiescence by the appellant.
If
there was acceptance of the variation, as there was, there was no
claim to be prescribed.
It
follows that by his conduct, the appellant impliedly consented to the
variation of his contract. In such circumstances, he could not claim
any benefits flowing out of the contract that had been varied.
The
court a
quo
thus correctly found that the contract of employment was varied with
the consent of the appellant and therefore the allowances claimed by
the appellant were no longer claimable under the contract ushered in
by the memorandum.
It
is for these reasons that we found that the appeal had no merit and
proceeded to grant the order that we did as recorded at the beginning
of this judgment.
GOWORA
JA: I
agree
PATEL
JA: I
agree
Saratoga
Makausi Law Chambers,
appellant's
legal practitioners
Gill,
Godlonton & Gerrans,
respondent's legal practitioners
