This is a labour dispute between the parties. A brief history of the matter is as follows:
The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."
(Nedlaw was the Corporation's holding company).
There was also provision for one month's notice of termination of the contract to be given by either side.
Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.
On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.
The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."
Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).
After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).
Thereafter, events developed as follows:
1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."
2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.
3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.
4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."
5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.
6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.
7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.
8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:
(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).
(b) Payment of emoluments from the date of illegal termination to date.
(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.
9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:
"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.
2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.
3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.
4. That there be no order as to costs."
Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.
I will deal with them in turn....,.
(C) ACTING ALLOWANCE
The main argument put forward by the Corporation was that the claim for an acting allowance was not a dispute under the Labour Regulations Act. At best, it is a civil claim which should be bought in a Civil Court.
It seems to me that there is a great deal of merit in this argument.
Unless Mr Moyana can found his claim for an acting allowance squarely on some basis cognisable by the Labour Relations Act 1985, then, it is not a matter for determination under the Labour Relations Act.
His contract of employment makes no provision for acting allowances. In fact, it makes it clear that the salary structure in the Group is particularly flexible.
Compare the explicit provisions of section 19 of S.I.325 of1979 which deals with acting allowances in the Public Service.
There is thus no contractual basis upon which the claim may be founded.
The statute itself makes no specific provision about acting allowances, nor is there any other statutory provision in terms of which a "rate for the job" is laid down which is applicable to the facts of this case.
It has not been suggested, that, the failure by the Corporation to pay an acting allowance amounted to an "unfair labour practice" as defined in the Labour Relations Act, nor have I been able to find, in section 8 of the Labour Relations Act, or in the Third Schedule to the Regulations (S.I, 368 of 1985) anything which would indicate that failure to pay an acting allowance in these circumstances is an unfair labour practice.
Accordingly, the provisions of section 111(2)(b) of the Labour Relations Act, which begin with the words "in the case of an unfair labour practice involving a failure or delay to pay or grant anything due to an employee…," are not applicable.
I guard against saying that Mr Moyana has a claim under the Civil Law. All that I would say is that if he has a claim based in some way upon a quantum meruit, as counsel for the appellant suggested, such a claim should be brought before the Civil Court.
