Amos Aliyifadi v Bethel Meats

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THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/166/24
HARARE 02 FEBRUARY,2024
CASE NO. LC/H/927/23
AND 15 APRIL, 2024
In the matter between: -
AMOS ALIYIFADI
Appellant
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THE LABOUR COURT OF ZIMBABWE
HARARE 02 FEBRUARY, 2024
AND 15 APRIL, 2024

In the matter between: -

AMOS ALIYIFADI
Appellant

Versus

BETHEL MEATS
Respondent

Before the Honourable L. Hove, Judge:

For appellant : In Person
For respondent: Mr. P. Mahembe

This is an appeal against the decision of a senior designated agent of the National Employment Council for the commercial sectors (NECCS).

The appellants grounds of appeal are 4 and they are briefly that

1. The authority a quo erred and grossly misdirected itself in holding that the appellant was not employed by the respondent.
2. The designated agent erred in dismissing the appellant’s claim for non-payment of terminal benefits.
3. The authority a quo erred and misdirected itself by failing to appreciate that the provision of work uniforms was proof that there was an employer/employee relationship between the parties.
4. The designated agent erred and misdirected herself in disregarding that Real Grace Motor Spares and Bethel Meats are sister companies and Mr Artwell Mazango, a director of both companies, instructed the appellant to get a food handling certificate for use at Bethel Meats when he engaged him. Further, he argued that they said Mr Mazango had not denied that he was a director in both companies

Appellant’s submissions

Appellant argued that he had been employed by the respondent as a watchman on a permanent basis from August 2019. His duties changed when he became a block man. The appellant argued that he was requested to get a food handling certificate by Real Grace Motor Spares a sister company to the respondent. The appellant stated that he was on a salary of $8 per day and he was dismissed without due process by the respondent. He claimed three months’ notice pay, cash in lieu of leave, over time and damages in lieu of reinstatements.


Respondents submissions

The respondent denies that there ever was a contract of employment between the parties. The appellant was a vendor who sold his wares outside the respondent’s butchery. Occasionally goods would be received at the butchery and the staff would sometimes request the appellant to assist in offloading, the appellant would be paid a token of appreciation for the services rendered. It was not just the appellant who would occasionally provide this service but all other vendors in the area the respondent reiterated that there was never an employer/employee relationship and because of this, the appellant’s claims were baseless.

Issues for determination

The appeal grounds seek to challenge factual conclusions by the designated agent. The challenged issues are; a) whether or not the appellant was employed by the respondent
b) whether or not the appellant is entitled to the claims he makes on account of him being an employee of the respondent

Analysis

The court will consider the grounds of appeal ad seriatim.

Whether or not the designated agent grossly erred and misdirected himself in concluding on the facts before him that the appellant was not an employee of the respondent

The appellant in this ground is challenging a factual finding that the respondent did not employ him.

The position of law when one is challenging factual conclusion is now firmly established and it is that an appellate court will not interfere with factual finding unless the findings complained of were so gross that no reasonable person applying their minds to the issues before him could have arrived at the conclusion arrived at. The designated agent dismissed the appellant claim on the basis that there was no evidence placed before him to warrant a finding that there was an employer/employee relationship between the parties. The designated agent reasoned as follows;

“claimant is the one shouldered with the burden of proof to prove that there was an employment contract. I make reference to the case of Pillay Krishna 1946 AD 946 at 951-2 where it was stated that;

‘If one person claims something from another in a court of law then he has to satisfy the court that he is entitled to it the onus is on the person who alleges and not on his opponent who merely denies it…’”

On the basis that the claim had not been substantiated the designated agent dismissed the claim and found that there was no employer/employee relationship between the parties.

The appellant sought to lead evidence on appeal that he was employed by the respondent. This cannot be allowed. The designated agent can only be challenged on the basis of evidence placed before him and not on the basis of evidence that was never placed before him. See in this case Dandazi v Hwange Colliery Co Limited 2001 (2) ZLR 298, Simon Gazi v NRZ SC 60/15 and S v Baloyi 1991 (1) SACR 265.

Further, the appellant ought to have shown that in making the finding that there was no employment relationship between the parties, the designated agent grossly misdirected himself. Nothing has been placed before me to enable me to come to a conclusion that the designated agent’s decision was grossly irrational.

In the case of Goto v Goto 2001 (2) ZLR 519 it was stated that;

“it is a well settled principle that this court will not interfere with the exercise of judicial discretion of a trial court unless there has been misdirection such as; a) a court having acted upon a wrong principle; or b) the court having allowed extraneous or irrelevant considerations to influence its discretion; or c) the court being mistaken on the facts upon which the discretion was exercised; or d) failure to take into account some relevant considerations

See also Dube v Murehwa and another S/C 68 /01, and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664.

The appellant, in casu, did nothing to demonstrate that the designated agent’s decision was so outrageous in its defiance of logic or acceptable moral standards.

In the result this court cannot interfere with the factual findings made by the tribunal a quo. The first ground of appeal is thus without merit.

Ground of appeal No 2: whether or not the tribunal a quo misdirected itself in dismissing the appellant’s claim for non-payment of terminal benefits.

In view of the fact that this court finds that it cannot interfere with the decision of the designated agent that there was no employer/employee relationship between the appellant and respondent, the tribunal a quo cannot be faulted for dismissing the claim for the non-payment of terminal benefits. Further, the ground of appeal is challenging a factual conclusion without even alleging that there was a gross misdirection on those facts. The ground of appeal is thus devoid of merit and cannot succeed.

Ground of appeal No 3: whether or not the Court a quo erred by failing to appreciate that the provision of uniforms was proof that there was an employer/employee relationship

The appellant ought to have shown that the decision was grossly irrational but the appellant proceeded as though oblivious of this requirement placed upon him by the law. He sought to bring new evidence on the provision of uniforms to show that there was an employment relationship but this evidence ought to have been placed before the tribunal a quo. The tribunal a quo cannot be faulted on the basis of evidence which was never placed before it. See the case of Dandazi (supra)

Ground of appeal No 4: whether or not the designated agent erred in disregarding that Real Grace Motor Spares and Bethel Meats are sister companies and therefore this proved that there was an employer/employee relationship.
 The tribunal a quo found no nexus between the fact that Bethel Meats and Real Grace Motor Spares were connected in such a way as to prove the existence of a contract of employment between the parties. The 4th ground is argumentative and not concise it does not seek to establish that the tribunal a quo’s factual findings were irrational, nothing was shown to this Court to enable it to interfere with the findings of the tribunal a quo.

In the result, I find no merit in all of the appellant grounds of appeal and the appeal cannot succeed.

The following order is made;

**Order**

1. the appeal being entirely without merit it be and is hereby dismissed
2. each party will bear its own cost.
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