Payment of acting allowance

legal battles that even spill into the courts for determination. This week I will examine one such case.
Edson Nyamuchiwa worked for National Foods (Pvt) Ltd when he raised a grievance of non-payment of an acting allowance.
This was in terms of the grievance procedures as laid down in the Nat Foods Code of Conduct.
Nyamuchiwa claimed that for the period June 2009 to November 2010 (one-and-a-half years) when he was in grade C2 Human Resources Assistant he performed duties of a Human Resources Officer grade C6.
His claim was that he should be paid acting allowance, and he was not successful.
Nyamuchiwa sought the intervention of the Labour Court. Acting allowance is defined in Section 35, sub-Section (1) of the Nat Foods Code.
“An allowance paid to an employee for performing work in a higher grade for a temporary period.”
Sub-Section (7) of the same section puts a restriction on acting as follows.
“No Head of Department shall permit an employee to act for more than three consecutive months.”
Nyamuchiwa’s grievance was declined through the process sorely on the ground that he failed to substantiate it by showing or proving what co-functions of the Human Resources Officer he performed.
The question is whether he was in possession of a letter appointing him to act in the grade in question. Nyamuchiwa did not have the letter.
The only document in his possession was for his elevation to grade C4. To support his argument, Nyamuchiwa submitted that he performed duties, which were exactly the same as those performed by the then Human Resources Officer grade C6.
He claimed that he was granted an educational loan to upgrade his professional qualifications, and that a Mr Ruhode promoted him to grade C4.
Nyamuchiwa produced Exhibit A which showed that he — as Human Resources Officer — on August 17, 2009 prepared a notice to attend disciplinary hearing in the matter of one C Gopo.
In the same matter he prepared a notice to hear and determine the misconduct report.
Nyamuchiwa also prepared a notice summoning the complainant to attend the hearing.
Finally, he endorsed his comments and signature on the disciplinary action form as Human Resources Department.
Exhibit B showed that on November 6, 2008 he was the minute taker in the hearing of one A Bvukuta.
Exhibit C contained some loan application forms by Nyamuchiwa, which were approved by the Human Resources Manager Mr Ruhode, invoices from IPMZ and the result slip.
Exhibit D was a notification of promotion form dated May 15, 2009 signed by Mr Ruhode in which Nyamuchiwa was to be elevated to Human Resources Assistant C4 from Paramedic C2 with effect from February 1, 2009.
The form showed that the elevation was not approved.
Exhibit E were notices to attend a disciplinary hearing — hear and determine a misconduct report in the matter of Evans Mapenduka, which notices were prepared by N Gamba, the Human Resources Manager.
Exhibit F contained Nyamuchiwa’s main duties and responsibilities at grade C2.
Among others, his duties were to provide advice on the use of the Code by advising line managers on effective use of disciplinary and grievances procedure to ensure procedural fairness.
Nyamuchiwa advised the employee his/her rights to representation in terms of the Code.
He participated in all disciplinary matters for employees graded A1 to C6 by assisting line managers on the preparation of acts of misconduct.
Nyamuchiwa recorded and collected all documentary evidence on all cases raised, and summoned all parties involved to a hearing using appropriate documents. He prepared all the documents for the appeal hearing and summoned the parties to the hearing.
Nyamuchiwa assisted line managers on the applications and interpretation of labour laws.
He prepared and submitted monthly pending disciplinary and labour cases reports.
Exhibit G was an internal advert dated November 7, 2003 for the post of Human Resources Officer grade C6.
The duties included advising management on application of labour rules and regulations, assisting management on the interpretation thereof and provide advice on grievance handling and disciplinary procedures.
Exhibit H was a letter of transfer dated November 16, 2009 to Corporate Office addressed to Nyamuchiwa by the Human Resources Manager Mr Gamba.
The transfer was on the same conditions of service and with effect from November 23, 2009.
Nyamuchiwa acknowledged and accepted the terms and conditions that went with the transfer.
The issue that was for determination by the Grievances and Appeals Committee was whether Nyamuchiwa was entitled to be paid acting allowance for the duties that he said he performed.
The committee found that the duties he performed were his duties as outlined in his terms of reference. His grievance was then dismissed.
After a perusal of all the exhibits and submissions, there is no fault in the decision of the Committee.
Acting allowance is paid to a person for performing work in a higher grade.
If one looks at Exhibit F the duties Nyamuchiwa alleged were higher duties he performed were actually his duties at grade C2 as at March 26, 2009.
He claims acting allowance for a period of one and half years. Sub-clause 3 of Clause 35 states that one acts for an aggregate of 25 days.
One wonders why Nyamuchiwa waited for one and half years without lodging his claim and grievance.
It can safely be concluded that it was because he never acted in such higher position.
From August 2008 to March 2009, Nyamuchiwa adduced no proof to substantiate his claim that he performed higher duties.
Exhibit B showed that in November 2008 he was a scribe in a disciplinary hearing for Bvukuta.
He did not produce any document like Exhibit F, which showed his duties as at that date.
Without such evidence, it is difficult to state that scribing was not one of his duties at the time.
The other duties he performed in Exhibit A were performed pursuant to and in compliance with Exhibit F, these were therefore his duties.
Nothing turns on Exhibit C and it is not evidence to show that he performed higher duties.
After considering all submissions, Labour Court senior president Ms Gladys Mhuri found that Nyamuchiwa failed to prove his claim. In the result, Nyamuchiwa’s appeal failed and was dismissed with costs.