Charles Gomwe v Cresta Hospitality

IN THE LABOUR COURT OF ZIMBABWE                   JUDGMENT NO. LC/H/114/2013
HELD AT HARARE ON 20 FEBRUARY, 2013               CASE NO. LC/ H/607/2011
In the matter between



CHARLES GOMWE                                 –             Appellant
And

CRESTA HOSPITALITY                                    –           Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant       - Mr D. Mawadze (Legal Practitioner)
For Respondent      - Mr I. Chagonda (Legal Practitioner)




MATANDA-MOYO, L.

      This appeal is totally devoid of merit. Appellant appealed to this court not

based on any evidence but on emotions. The appeal is an example of abuse of

court process. I dismissed the appeal on the date of the hearing. These are my

reasons. The facts of this case are that Appellant initially joined Respondent on

1 November 1987 as an Accountant at Cresta Jameson. On 25 January Appellant

entered into a Contract of employment with Cresta Marakanelo (Pvt) limited

where he was employed as a Financial Controller, Best Western Thapama Hotel.

The contract was for a year from 1 December 1996 to 30 November 1997. The

contract was later terminated by Cresta Morikanelo in November 2011.

Appellant was on 28January 2002 appointed as Group Accountant Cresta Head

Office in Zimbabwe. Appellant signed the acceptance on 5 March 2002. He

served his probationary period and was confirmed as Group Accountant from 1

May 2002.       On 26 January 2006 Appellant was offered a job as Projects
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Development Manager, Cresta Golfview Hotel (Pvt) limited in Zambia.           He

accepted on 8 March 2006. On 9 July 2009 Appellant resigned from Cresta Golf

view Hotel and served his three months notice. His reasons were that he had

decided to join his family in Zimbabwe. Upon his return to Zimbabwe Appellant

sought employment with the Respondent. He failed to gain such employment.

He then referred the matter for conciliation. Appellant claimed that he was an

employee of the Respondent and that he was unfairly dismissed from work.

Conciliation failed and the matter was referred for arbitration. The Arbitrator

found in favour of the Respondent and dismissed the Appellant’s claim.



      Aggrieved by the Arbitrator ruling the Appellant noted an appeal to this

court on the following grounds;



      1.    That the Arbitrator failed to ascertain the Legal employer – employee

           relationship that existed between the parties and or the unfair labour

           practices thereof.

      2. That the papers filed of record highlight the fact that Appellant was in

           the employ of Respondent and was unprocedurally dismissed without

           a hearing, notice or benefits.



      Respondent submitted that the above grounds do not raise questions of

law and such appeal is improperly before me. Section 98(10) of the Labour Act

(Chapter 28:01) provides that an appeal to this court from an Arbitrator’s

decision lies on points of law.




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      Respondent correctly submitted what is meant by a point of law. He

quoted the words of Sandura JA in the case of Murawo vs Grain Marketing

Board of Zimbabwe 2009 (1) ZLR 304 where he said;


      “the term question of law is used in three distinct though related senses,1 st, it means a
      question which the law itself has authoritatively answered to the exclusion of the right of the
      court to answer the question as it thinks fit in accordance with what it considered to be the
      truth and justice of the matter. Secondly, it means a question as to what the law is. Thus an
      appeal on a question of law means on appeal in which the question for argument and
      determination is what the true law is on a certain matter. And third any question which is
      within the province of the Judge instead of the jury is called a question of law……’’



      Respondent argued that his ground of appeal pertains to the

determination of whether Appellant was in the employ of the Respondent at the

time of dismissal. He argued that the relationship between an employer and

employee is one which the law had authoritatively answered. Appellant argued

that his appeal is based on a question of law. I agree that the appeal is properly

before me.



      Let me proceed to deal with the ground of appeal as raised. Appellant

submitted that the Arbitrator failed to properly consider the evidence before

him which showed that Appellant was Respondent’s employee when he was

seconded to Botswana. Appellant argued that at the time of his dismissal he

was an employee of the Respondent. He relied on the long service award which

was handed over to him upon his return from Botswana.



      I have perused the Arbitrator’s findings. I am satisfied that the Arbitrator

dealt with the issue of whether Appellant was an employee of Respondent at the

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time of his dismissal. On page 17 of the record under the “Arbitrator Analysis” the

Arbitrator wrote;


      “To decide on the above issue in dispute I have made the following observations-: that the
      Claimant (Appellant in this matter) failed to dispute the Respondent’s arguments that Cresta
      Marakanelo Botswana and Cresta Zambia are separate legal entities from Cresta Hospitality
      Zimbabwe, it cannot be argued that the Claimant was in an uninterrupted employment
      relationship with Cresta Hospitality Zimbabwe even in period that he entered into separate
      full time employment contracts with legal entities.’



      Once a finding was made that Appellant was not in a continuous

employment contract with the Respondent since 1987 to early 2011, it is correct

that the Arbitrator found that at the time of dismissal there was no employment

relationship between the parties.               The circumstances of this matter are

distinguishable from those in Dairiboard Zimbabwe Ltd vs Muyambi 2002 (1)

ZLR 448(S) where in Muyambi’s case, he was seconded to Dairiboard Malawi Ltd

on a contract of assignment entered into between Muyambi and Dairiboard

Zimbabwe Limited. In the present case the Appellant never signed any contracts

of employment with the Respondent for the Zambia position nor with the

Botswana position. I did not find any fault in the Arbitrator’s ruling that the

Appellant was not an employee of the Respondent. It is settled in our law that

the one who alleges bears the onus of proof. Appellant dismally failed to prove

any employment relationship with the Respondent at the purported time of

dismissal.



      The argument by the Appellant that the mere receiving of a long service

award by him when he returned from Botswana is proof that he was still

employed by Respondent at the purported time of dismissal is baseless.

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Respondent conceded such award was given in error.          I am convinced that

Appellant needed more proof than the evidence of receiving a long time award

which included the period he was in Botswana.



      On page 28 of the record is proof that Appellant was paid his terminal

benefits in 2006 when he took up employment with Cresta Golfview Zambia. In

2009 Appellant resigned from his position with Cresta Golfview Zambia. If it was

true that he was on secondment he should have transferred back to the

Respondent.    His resignation is evidence that he was not employed by the

Respondent at the time. There is no suggestion by him that he even discussed

his resignation with Respondent.



      Appellant was not an employee of the Respondent. He never produced

proof before the Arbitrator. The appeal to this court is frivolous and vexatious

and this is a case where the court has to express its displeasure of litigants

abusing court processes by issuing on order for costs against the Appellant.




Accordingly the appeal be and is hereby dismissed with costs.


Manase and Manase– Appellant’s Legal Practitioners

Atherstone and Cook - Respondent’s Legal Practitioners




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