CETC 22 (Pvt) LTD V Musekiwa Mandizvidza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/13/2016
HARARE, 16 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/13/2016

HARARE, 16 MARCH 2016			     	    CASE NO. LC/MS/03/16

AND 13 MAY 2016

In the matter between:-

CETC 22 (PVT) LTD		 			Appellant

And

MUSEKIWA MANDIZVIDZA				Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr B Mufadzo (Legal Practitioner)

For Respondent	Mr K. Mawoyo (ZCTU Official)

HOVE, J:

This is an appeal against an arbitral award.

The law does not allow appeals against decisions of arbitrator to be premised on points of fact unless it is alleged in the grounds and notice of appeal that the findings of fact made where wholly irrational.

Grounds of appeal numbers 2 and 3 are raising questions of fact and not law.

In ground number 2, the challenge is that the arbitrator made unreasonable conclusions that there were direct dealings and or communications between the respondent and any of the appellant’s officers.

These are factual conclusions.  They can only be challenged in this court where it has been alleged that the findings of fact were grossly irrational.  It is not sufficient that the findings of facts were unreasonableness. What will allow this court to interferer is an unreasonableness so gross that no reasonable person applying their mind thereto would have come to that conclusion.

Ground number 3 also seeks to challenge the fact that the respondent was not given enough notice of appellant’s intention to terminate the employment contract.  Again this is factual.  No issues of law are raised.

A point of law is one that seeks to establish what the true rule of law is.  In casu, the ground is merely raising factual issues.

See in this regard the following cases

Mutsuta & Anor v Cagar (Pvt) Ltd SC 47/09

Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217

The two grounds are thus improperly before the court and must be struck off.

The first ground of appeal seeks to challenge the fact that there was labour broking.  This is the only issue that is properly before the court.

The facts of this matter are that the respondent argued that he was appellant’s employee.  This was disputed by the appellant who argued that it In the execution of its mandate it subcontracts third parties to do work on behalf of its clients.  In this case, it had subcontracted Quin Vajee, a Chinesse National to do work for its clients and it is this Quin Yajee who was the Respondent’s employer.

The Arbitrator found that the appellant employed the respondent and just used a middle man to run away from it’s cooperate responsibilities.

The case of Stanley Takaendesa v Scheppes Zimbabwe Pvt Ltd by arbitrator Matsikidze was cited.  There is no citation and the decision was not availed to the court. But from the submissions on page 16 of the record the facts of that case differ from the present case.

The employee in the Schweppes case supra seems to have been employed by Schweppes and then by Lorimark but there was no break in employment from the first employer to the next. The duties remained the same, the only change was that now Schweppes was paying Lorimark and Lorimark would then pay the employee.  The same appears to have been the facts in another foreign case cited but not availed to the court, the case of Shikwambana v Quantum Construction Holdings (Pty) Ltd (NH 11-2-2632).  In that case too, the employer entered into a contract with an independent contractor, whose only employee was 9 former employee of the company. These were now employed by the contractor doing exactly the same services as before.  The court pierced the corporate veil and held that the company was the real employer.

The facts of this case however differ from the above two cases.  There is no allegation that the respondent was ever employed by the appellant.

The agreed facts were that

The respondent was never on the appellant’s payroll,

There was an employment relationship with the appellant’s subcontractor, the said Quin Yajee and the respondent.

From the common cause facts you can deduce that there was never any employer/employee relationship between the parties.  There is thus a clear distinction between this case and the two that the court has been referred to.

There is therefore no basis to find that there was an employer/employee relationship between the parties in this dispute. In the applicant’s submissions on page 24 to 25 of the record nothing is submitted on the subcontract agreement to justify my piercing of the corporate veil.  The applicant then (respondent now) merely proceeded on the basis that there was an employer/employee relationship with the applicant and did not take the court into his confidence nor did he disclose the subcontractor aspect.  In his counter submissions on page 16 to 17 of the record he does not outline the facts that would justify the holding that the appellant was his employer.

It is only in the heads of arguments that the respondents opens up about the subcontractor issue and says there was a subcontractor relationship.  This was not placed before the Labour officer.  The respondent’s case cannot be established on the basis of heads of arguments but he should have outlined the basis of his defence in his response.

The appellant, I think placed enough evidence before the Labour officer that it was not the employer and it was a misdirection for the Labour officer to have found as he did on the basis of the facts placed before him.

In the result the appeal succeeds on the basis that the appellant was not the respondent’s employer.  The respondent should have sued Quin Yajee or his company.

The following order is accordingly made.

The appeal is upheld.

There is no order as to costs.

Mufadza & Associates, appellant’s legal practitioners