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Mashudu Netsianda Senior Reporter
HWANGE Colliery Company Limited (HCCL) has lodged an appeal at the Supreme Court challenging a decision by the Labour Court which ordered it to pay its former employee more than $15,000 in outstanding skills retention allowances.

In the court papers, HCCL is the appellant while Francis Zambuko, a former technical superintendent at the coal mining company, was cited as the respondent in the matter.

Zambuko, who was employed by HCCL between August 2008 and July 2009, entered into a written agreement with the coal mining firm. According to the pact, HCCL was to pay Zambuko a monthly retention allowance of $2,665 in pursuant to the Exchange Control (Payment of salaries by exporters in foreign currency for critical skills retention) ORDER, 2008 (Statutory Instrument 127/2008).

Section 3 (1) of the SI 127/2008 states that an exporter can seek Reserve Bank of Zimbabwe (RBZ) authority to pay a salary in foreign currency where an employee has critical skill. In the event the company wishes to pay such an employee in foreign currency for the purposes of retaining his or her services, the exporter shall make a written application to the RBZ through the exporter’s authorised dealer.

In the court papers, Clause 1 of the agreement between Zambuko and HCCL stipulated that the retention allowance would be paid with effect from August 1, 2008 in US dollars and would be subject to the employee agreeing to remain in the employ of the appellant for 12 months after which the agreement would be subject to review at the discretion of HCCL.

In its heads of argument, HCCL argued it made the requisite application for approval of the agreement to RBZ but such approval was never granted until it was overtaken by events when the country adopted the multi-currency regime in February 2009.

The coal mining firm said after the introduction of the multi-currency system, it abolished the retention allowances, arguing that the facility was only a temporary measure to retain skills.

After signing the agreement without RBZ approval, HCC paid Zambuko “the allowances” in the form of fuel coupons between November 2008 and January 2009. With effect from February 2009, HCCL started paying its employees in US dollars and Zambuko was not paid his allowances until he was dismissed from his job on July 30, 2009.

Zambuko unsuccessfully challenged his dismissal before he filed a labour dispute claiming payment of the retention allowances from February to July 2009 pursuant to his agreement with HCCL and the arbitrator made a determination in his favour.

Dissatisfied with the arbitral award, HCCL subsequently noted an appeal to the Labour Court and it was dismissed. HCCL was ordered to pay Zambuko retention allowances for the period from February 1, 2009 to July 31, 2009.

In its notice of appeal, HCCL, through its lawyer, Advocate Lucas Nkomo, instructed by Coghlan and Welsh Legal Practitioners, argued that the court a quo erred in law by interpreting and enforcing an agreement which never came into effect by reason of non-fulfilment of a suspensive condition, namely the approval of the Reserve Bank of Zimbabwe (RBZ).

“The court a quo committed a gross misdirection on the facts amounting to misdirection in law by making a finding that there was no proof that the RBZ had not granted approval to the agreement signed by the parties when the fact of non-fulfilment of that suspensive condition was common cause between the parties,” said Adv Nkomo.

He further argued that the court a quo erred in law by interpreting and enforcing an agreement tainted by illegality and therefore a nullity because the parties’ purported contract was in a currency that was not legal tender and without the authority of RBZ.

HCCL seeks an order that sets aside the Labour Court judgment. Zambuko, who is a self actor, in his heads of argument, said HCCL’s actions were a violation of the country’s labour laws.

“Appellant is desperate and is attempting not to own up to the contract by bringing unrealistic reasons. Therefore, in coming up with a determination this honourable court should defend and uphold workers’ rights against unfair labour practices, unfair remuneration and exploitation,” argued Zambuko.

He prayed for the dismissal of the appeal with costs.

The matter was heard yesterday before Justices Bharat Patel, Ben Hlatshwayo and Paddington Garwe, sitting during a Supreme Court circuit in Bulawayo.

The Supreme Court judges will make a ruling on the matter today.