THREE former TM Supermarket line managers have filed leave to appeal to the Constitutional Court challenging a Supreme Court ruling which set aside an arbitration ruling which was in their favour.
Itayi Nkomo, Thembinkosi Nyathi and Nicholas Khumbula Tshili were awarded $2 390 each by an arbitrator, which was then registered by Bulawayo High Court judge, Justice Martin Makonese on January 23, 2013 before TM filed an appeal at the Supreme Court seeking to set aside the arbitration award.
Supreme Court judges, Justices Paddington Garwe, Anne-Marie Gowora and Francis Bere heard the matter and on May 8 upheld the application by TM Supermarket ruling that the line managers were being paid according to the terms of their signed contracts and in conformity with the collective bargaining ggreement, hence the arbitrator and the High Court erred in granting them the award.
The Supreme Court contended to TM’s submissions that the salary variances which were given to various line managers which led to the three seeking to be paid more than what they were getting were based on performance bonus scheme and there was nothing illegal about putting such a scheme.
“The judgment of the court aqua is set aside in place is substituted, the appeal be and is hereby allowed with costs, the arbitral award by the learned arbitrator is hereby set aside,” ruled the Supreme Court.
Following the Supreme Court judgment, the line managers have filed an application for leave to appealed to the ConCourt challenging the ruling on the grounds that the Supreme Court misfired by involving matters of bonuses in its ruling.
They said bonuses were never in any case since the labour dispute started been argued on, hence the Supreme Court erred in setting aside their arbitration award and court ruling in their favour basing on the issue of bonuses and performance based payments.
In his founding affidavit Nkomo submitted that their rights to stipulated pay outs were infringed on.
“Every employee has a right to fair and safe labour practice and standards to be paid a fair and reasonable wage. The applicants were shocked that the Supreme Court based the whole of their judgment arguing about a performance bonus, a subject the applicants had never complained about. In other words, the Supreme Court argument was off topic,” Nkomo submitted.
He said this was purely on the basic salary shortfalls that the company ignored to pay them when other managers of the same level were getting. He said it was not true that they were aggrieved by nonpayment of performance bonuses.
The Supreme Court ruling came after the former line managers had raised a stink over the delay in giving judgment on the matter by the Supreme Court. They had even engaged Transparency International Zimbabwe (TIZ) to probe the Supreme Court over delays.
The three former managers said they are owed for August 2012 to November when they were paid $400 instead of $450, December 2012 to February 2014 when they were paid $434 instead of $489 and March 2014 to January 2016 when they were paid $447 instead of $504, and the total owed to each of them is $2 336 accumulative every month they are underpaid.
The application is yet to be scheduled for set down.