Workers' allowances not a right: Court

HARARE - The Supreme Court has ruled that allowances are not a right for workers but was at companies’ discretion.

The ruling was handed down following an appeal filed by the National Railways of Zimbabwe, which was challenging a Labour Court ruling and an arbitrator’s decision, granting the rail company’s workers housing and educational allowances.

“His (arbitrator) finding that housing and school fees allowances ‘have to exist in one form or the other’ was misguided, devoid of any legal basis and irresponsible,” Supreme Court judges Vernanda Ziyambi, Elizabeth Gwaunza and Antonio Guvava unanimously ruled.

“So, too, was the subsequent award of the said allowances in percentages lacking evidential foundation and, as submitted by the appellant ‘plucked out of the air’.

“Clearly, the arbitrator acted outside his powers when he purported to set the terms of the collective bargaining agreement between the parties, and the Labour Court erred in law when it upheld the arbitrator’s award.”

In the application, NRZ cited the Zimbabwe Railways Artisans Union, Railway Association of Yard Operating, Railway Association of Enginemen and the Zimbabwe Amalgamated Railwaymen Union as respondents.

NRZ filed the appeal after an arbitrator and the Labour Court upheld the respondents’ request to be paid housing and educational allowances.

“In my view, both the Labour Court and the arbitrator ought to have found that the allowances, not having been negotiated by the parties and therefore not forming part of their collective bargaining agreement, were not a right or entitlement available for appropriation by the respondents,” the court said.

The court further ruled that an arbitrator could not impose terms and conditions in parties’ collective bargaining agreement.

“The appellant’s position was ‘I will pay you the best salary that I can pay in the circumstances but I would rather not commit to pay allowances’. There is nothing wrong with that approach. Each undertaking is beset with its own peculiar circumstances.

“The fact that one employer considers it appropriate to pay allowances puts no obligation on another employer to do the same,” the court ruled.

The court said that the arbitrator in this case had no meaningful role to play in the matter save to urge the parties to negotiate further on the issues in dispute.

Thabani Mpofu, who was instructed by Mbidzo, Muchadehama and Makoni Legal Practitioners, appeared on behalf of NRZ, and the respondents were represented by Thembinkosi Magwaliba, instructed by Sinyoro and Partners and Legal Practitioners.

Comments (2)

This is a well reasoned judgement by the lady justices unlike the other case where the court appears not to have read the law. In the other case section 13 of the Labour Act is what ousts the common law supposedly relied on. One does not need to be a lawyer to see that an employee who resigns, is dismissed or dies cannot be treated as one leaving employment at the instigation of the employer.

Monya - 28 July 2015

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Blessing - 28 July 2015

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