TM order to pay $2,390 back pay to its underpaid managers

TM Supermarket has lost an appeal at the High Court after it unsuccessfully sought the court to set aside of an arbitration which compelled it to pay three of its managers a total of $2,390 each being back pay after underpaying them.

Bulawayo Labour Court Judge President Mercy Moya Matshanga on Friday dismissed TM Supermarket appeal after a Bulawayo arbitrator on October 28, 2012 had issued an award in favour of the three managers, Itayi Nkomo, Thembinkosi Nyathi and Nicholas Khumbula Tshili compelling the supermarket giant to pay them $2 390 each as back pay.

This was after the retail chain underpaid them as punishment for refusing to work on Unity Day in 2009.

TM Supermarket management appealed against the award at the Labour Court.

Matshanga said the chain store had submitted in its appeal that it was aggrieved by the award claiming that the arbitrator misdirected himself both at law and in fact when he found that TM Supermarket was committing unfair labour practice.

Matshanga said facts of the matter were that TM Supermarket employed the three in 1995 as shelf packers and they rose through the ranks to become section managers in grade C 2.

They were earning $360 per month and in November 2011 they discovered that their counterparts in other branches were earning salaries of $400 to $450 per month. They also discovered that the NEC graded employees were earning more than that. But when they wrote to the management over the issue the management denied the allegations but only opted to add $40 on top of their salaries to total to $400.

Matshanga said it is inconceivable that TM argues that the arbitrator erred in delving into the issue of normalising the compensation system when it was not asked to do so, yet the employer tried to normalise the system before going to arbitration by paying an unexplained $40 to each employee putting their pay at $400.

"Appellant (TM) now denies that there were any section managers that were ever paid $450. However, in their submissions at arbitration they said the top ten performers were earning between $420 and $450 a month. The respondents (managers) are therefore truthful in their averment. I fail to see how the arbitrator misdirected himself on a point of law and I hereby dismiss the appeal with costs."

TM had indicated that it was paying the managers salaries above the National Employment Council (NEC)'s collective bargaining Agreement and the managers in their submissions to the arbitrator had not indicated that they were being paid less the NEC stipulated salaries.

 "The arbitrator erred in law in finding that the appellant (TM Supermarket's performance based salary was illegal. The arbitrator grossly erred and misdirected himself on a point of law in finding that the appellant's behaviour is criminal and liable for prosecution when it is clear from the record that the salaries paid to the respondents above the NEC Collective Bargaining Agreement," reads TM submissions

TM said the arbitrator grossly misdirected himself on a point of law in ordering it to normalise the compensation system when he had not been tasked to do so.

 "Neither did the respondents (managers) pray for the relief granted nor was it addressed in their submissions," TM submitted. "The order is therefore incompetent. The general gist of the appeal is that the arbitrator misdirected himself at law when he ordered that the issue of performance related salaries should be fair and transport."

TM submitted that the managers had only argued that it was not fair and just has people in the same grade, doing the same job earning different salaries besides they were never made aware of the fact that their salaries would be performance based.

The chain store also submitted that the managers also said they performed well and first in the country and also including being number 5 out of the 52 branches country wide a feat which would be unachievable if a branch is not performing well.