Coen and Diva Investments (Private) Limited v Douglas Benhura & 4 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/102/23
HARARE, 15 FEBRUARY, 2023
CASE NO. LC/H/545/22
AND 15 MAY, 2023
COEN AND DIVA INVESTMENTS (PRIVATE) LIMITED
APPELLANT
vs
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==============================

IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/102/23
HARARE, 15 FEBRUARY, 2023
CASE NO. LC/H/545/22
AND 15 MAY, 2023

COEN AND DIVA INVESTMENTS (PRIVATE) LIMITED
APPELLANT
VS

DOUGLAS BENHURA
1st RESPONDENT
EUSTACIOUS CHIBONDO
2nd RESPONDENT
TEURAI MUBAIWA
3rd RESPONDENT
LETICIA CHIMOMBE
4th RESPONDENT
TINASHE ZINDOGA
5th RESPONDENT

Before the Honourable Chivizhe, J;

For the appellant: Mr M.S.P. Simango (Legal Practitioner)
For the respondent: Ms F. Ndou (Legal Practitioner)

CHIVIZHE, J:

This is an appeal against a determination made by the Designated Agent for the Food and Allied Industries on the 20th of May, 2022. The appeal is opposed.

BACKGROUND FACTS

The material background facts to the matter are as follows. The 1st respondent were all formerly employed by the applicant. The status of their employment is the subject of dispute in this appeal. Sufficient to note that the 1st respondent was engaged by appellant as a General Hand on 5th of February, 2020, 2nd respondent on the 9th of February, 2020 as a General Hand, 3rd respondent on the 4th of May, 2020 as a General Hand, 4th respondent on 9th of April 2020 as a General hand and lastly 5th respondent on the 5th of August 2020 as a General Hand.

Following their termination from employment on 31st December, 2021 the respondents were aggrieved as the appellant did not pay them termination benefits. They were contending that they were at that stage engaged on the basis of contracts without limit of time in view of the fact that the appellant had not specified on engagement the duration of their initial contracts or the date of termination. They viewed their status as employees on contracts without limit of time in view of the provisions of Section 12(3) of the Labour Act [Chapter 28:01]. Appellant’s position on the other hand was that the respondents had been engaged as casual employees. A dispute ensued between the parties resulting in the matter being placed before the Designated Agent.

The issues in dispute were three i.e.

(i) Whether or not the claimants were engaged on casual contracts or contracts without limit of time

(ii) Whether or not there was underpayment of salaries and non-payment of housing and transport allowances or not

(iii) Alleged non-payment of terminal benefits upon termination of employment

All the parties and their representatives appeared before the Designated Agent and made submissions.

The respondents who were the claimants submitted that they had been engaged on the basis of contracts without limit of time by virtue of the provisions of Section 12(3) of the Labour Act [Chapter 28:01]. Having been engaged on silent contracts they had to be deemed to have become contractors without limit of time therefore. The respondents stressed that it was appellant responsibility to produce the records to substantiate its claim that they were engaged as casuals. Respondents representative also submitted that they were initially being paid on a daily basis up until October 2020 and from there onwards they were being paid monthly until the time of termination.

The respondents were therefore claiming their terminal benefits which included three months’ cash in lieu of notice, cash in lieu of accrued leave days, compensation for loss of employment and underpayment of wages. Their prayer was for the appellant to pay to each of them the amounts as quantified by them.

The appellant through their legal counsel submitted that the sole issue for determination before the Designated Agent was the issue as to whether the respondents had been engaged as casual workers in a period exceeding six weeks in any few consecutive months as outlined in section 12(3) in the Labour Act [Chapter 28:01]. The appellant disputed that the respondents were ever engaged on contracts without limit of time. Appellant insisted that respondents were engaged as casual workers. The appellant further submitted that the respondents had received USD$50.00 on 1st of December, 2020 in respect of work done in the month of November 2020. Thereafter they were only receiving different payments depending on the hours worked for January 2021, April 2021, June 2021, August 2021, September 2021 and November 2021. The appellant’s final submissions was that the respondents having been engaged on casual contracts they worked for appellant as and when the need for their services arose, none of the respondents was however engaged in excess of six weeks without interruption. The appellant’s prayer was for the claims made by respondents to be dismissed for lack of merit.

The Designated Agent after considering the submissions made by the parties and analysing the evidence proceeded to make several findings. Firstly, that it was the position of law on the basis of **Section 13** of the **Labour Act [Chapter 28:01]** that every employee is entitled upon termination to be paid his terminal benefits. He made a further finding that as the respondent had never gone on leave during the subsistence of the employment they were each entitled to be paid leave pay which he then proceeded to calculate. He further found that the respondent were entitled to be paid 3 months’ notice pay as contractors without limit of time. The respondents were also entitled to be paid compensation for loss employment calculated at the rate of 2 weeks salary for every year served. Having made these findings the Designated Agent determined as follows;

“1. The claimants were engaged on a contract without limit of time

2. The claimants be paid their outstanding terminal benefits as follows:-

(a) Douglas Benhura $ZWL223 653.51
(b) Teurayi Mubaiwa $ZWL221 938.39
(c) Tinashe Zindoga $ZWL171 512.76
(d) Leticia Chimbome $ZWL221 938.39
(e) Eustacious Chibondo $ZWL221 079.30

(sic) 2. The terminal benefits are to be paid in two instalments starting end of May 2022 in the balance 30th June, 2022”.

The appellant was aggrieved. It noted the present appeal against the Determination of the Designated Agent which is dated 20th of May, 2022. The appeal has been noted on the basis of the following grounds of appeal;

1. The Designated Agent (court a quo) grossly misdirected himself and erred at law and in fact when he concluded that the respondent were employees under a contract without limit of time, when there was no evidence tendered by the respondents to that end and in the face of evidence to the contrary tendered by the appellant.

2. The Designated Agent (court a quo) grossly misdirected himself and erred at law and in fact when he concluded that the respondents were entitled to relief sought and awarded terminal benefits as highlighted in the attached determination when such award was not available to the respondents, who according to evidence led were casual workers and were not protected by the provisions of Section 12(3) of the Labour Court (sic) Act [Chapter 28:01].

3. The Designated Agent (court a quo) grossly misdirected himself and erred at law and in fact when he concluded that the appellant was guilty of unfair labour practice i.e. underpaying of salaries and gave an award when respondents as casual workers were not protected by the provisions of the Collective Bargaining Agreement for the Brewing and Distilling Sector nor were they entitled to quantification of damages in accordance with the aforementioned Bargaining Agreement.

ANALYSIS

Although the appellant has presented three grounds of appeal in my view the crux of this matter is whether or not the Designated Agent erred in finding that the respondent employees were engaged on contracts without limit of time at the time they appeared before him.

It is not in dispute that the respondents were initially engaged on the basis of casual contracts. The definition of casual labour is found in – Section 2 of the Labour Act [Cap 28:01] as follows;

“casual work” means work for which an employee is engaged by an employer for not more than a total of six weeks in any four consecutive months.”

It is common cause that the Respondents did not sign any contracts upon engagement. It is also not in dispute that by virtue of the proviso to Section 12(3) of the Labour Act [Cap 28:01] viz an employee on a casual contract is deemed to be an employee on a contract without limit of time on the day the period exceeds a period of six weeks in any four consecutive months. The proviso to Section 12(3) reads as follows:

“Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with aparticular employer exceeds a total oif six weeks in any four consecutive months”
 It is apparent form the award that the issue the Designated Agent had to resolve first was whether or not the respondents had each been engaged by the appellant as casual workers for periods that were exceeding six weeks in any four consecutive months. The respondents as the claimants submitted that they were engaged on contracts without limit of time or silent contracts. This was because they had not signed any contracts upon engagement. They further submitted that by virtue of Section 12(3) referred to supra they were deemed as being contractors without limit of time. The respondents further alluded to the onus being on appellant to prove the basis of their engagement. The respondents referred to Section 12(2) as mandatory upon the employer. That provision requires the employer to, on engagement of an employee, advise the employee of such things as the employer name and address, the period of engagement, the terms of employment if any particulars of residence, etc. The respondents contention was that the appellant having failed in this case to provide the particulars the Designated Authority had to adopt as correct the respondent’s position that they were engaged on contracts without limit of time. The respondents had proceeded to then place their individual claims before him.

The appellant counter-position was that the Designated Agent had to determine as a first issue the issue as to whether each respondent had been engaged as a casual worker in a period exceeding six weeks in any four consecutive months. The appellant believed that a resolution of the above against the respondents would result in the other claims by respondents falling away. The appellant also insisted that the respondents were engaged as a casuals and were never at any stage engaged for periods exceeding six weeks as outlined in Section 12(3) of the labour Act (Chap 28:01). The respondents were engaged as and when the need arose. The appellant had attached in evidence before the Designated Agent some forms reflecting acknowledgement of receipt of money by some respondents, the respondents having receipted payments for January 2021, April 2021, June 2021, August 2021, September 2021 and November 2021. The appellant also referred to a Labour Court judgment in Delta Beverages v Prince Kwesha & 2 Others LC/H/04/13 where the Labour Court had interpreted the provisions in Section 12(3). The appellant prayer consequently before the designated agent was for the claims to be dismissed.

Before this court the respondents submitted that they were unable to proffer any evidence in support of their claims as all the records were kept by the appellant as the employer. They still insisted however that although they had been engaged initially as casuals they worked throughout from the date of engagement to date of termination. To the court request as to who had the onus to discharge before the Designated Agent. Respondents’ submitted the onus was on appellant as the employer to prove their status as casuals and that they had not been underpaid for the duration of their employment. Appellant’s counsel on the other hand submitted that the onus was on the respondents as the claimants. The respondents had only presented evidence before the Designated Agent to rebut the claims as submitted by the respondents.

The law is clear that the employee party bears the burden and onus to prove claims made before the Designated Agent. In Firs Mutual Life Assurance Limited v Muzivi 2007 (1) ZLR 325(s) CHEDA JA at page 328 (-1) said;

“The suggestion that the employer failed or refused to furnish the respondent with appropriate salary scale suggest a wrong approach to the issue.

It is the respondent who had the onus to prove his claims. If he was dismissed when he was in a certain grade, it was for him to help the court what salary scale applied to him at the time of his dismissal. He could not just claim that he was a certain grade whose salary scale he did not know. This would suggest that h did not know what he was claiming”.

It is very apparent from a perusal of the record of proceedings that the respondents in this case were the claimants before the Designated Agent. They failed to discharge the onus on them to prove/establish the claim made that they were engaged on contracts without limit of time. It is also apparent that the Designated Agent was also not aware of the obligation on respondent to prove/establish their claims. This is apparent from a reading of the award in that having clearly indicated under his analysis of evidence and findings that he would like to address as a first issue the issue as to whether or not the respondents were engaged on casual contracts or contracts without limit of time, he thereafter abandoned the point and proceeded to determine on the actual terminal benefits claimed. Even with the individual claims made for example with Leave it is not clear from the award whether each Respondent was able to place evidence before the Designated Agent to justify their claims. What is however glaringly missing from the award is the finding that Respondents were engaged on the basis of contracts without limit of time and the justification thereof. There is no reference at all to the submissions by parties and the legal provisions relied upon in argument.

It is also important to note that the Appellant before this court placed evidence in the form of Cash vouchers for which some of the Respondent had signed for. The evidence that was placed before this court was in the form of Cash Vouchers for –

Douglas Benhura (31/05/2021)


Eustacious Alice (30/04/2021)
Eustacious Alice (31/05/2021)
Teurayi Mubaiwa (31/05/2021)
Teurayi Mubaiwa (30/04/2021)
Leticia Chimombe (31/05/2021)
Leticia Chimombe (30/04/2021)

Although **Section 90A** of the **Labour Act [Chapter 28:01]** does provide for the production of any additional evidence the nature of the evidence as presented points to the fact that the Designated Agent did not properly interrogate the crucial question before him as to whether the respondents were in continuous employment of the appellant as to warrant presumption of permanence of employment under provisions of **Section 12(3)**.

It must follow that the second ground of appeal is equally merited. The Designated Agent grossly erred and misdirected himself in proceeding to grant the claims for terminal benefits placed before him in the absence of a clear determination as to the correct status of the respondents. The appellant has also raised as a third ground of appeal that the Designated Agent grossly erred and misdirected himself in finding that appellant was guilty of unfair labour practice, by underpaying respondents salaries in circumstances where once again he had not made any findings as to whether or not the respondents were protected by the Collective Bargaining Agreement for Brewing and Distilling Sector as casual employees and how much they were entitled to claim on the basis of the same Collective Bargaining Agreement. The respondents did not either in oral or written submissions specifically address this ground. Suffice to note however the Designated Agent in his award proceeded to award to the respondents their terminal benefits including underpayments without so much of reference to the relevant Collective Bargaining Agreement and the employee’s entitlements thereunder. This clearly he could not do.

In conclusion it is apparent the Designated Agent in this case grossly misdirected himself in three material respects. Firstly, in failing to address the issue as to whether or not the respondents were in continuous employment as to be presumed permanent employees on the basis of **Section 12(4)** of the **Labour Act [Chapter 28:01]**. Secondly, he failed to appreciate who had the burden to discharge in order to address that crucial first point. Thirdly the Designated Agent grossly erred and misdirected himself when he failed to address the issue of underpayment, the basis of the claims as submitted before him, whether or not casual employees fell under the provisions of the particular Collective Bargaining Agreement. In light of this the appeal clearly succeeds. The relief that the court grants however is for the matter to be remitted back to a different Designated Agent for determination of the claims as made by the respondents.

It is therefore ordered as follows;

1. The appeal succeeds.
2. The determination by T.P. RUZIWA, Designated agent dated 20th May, 2022 be and is hereby set aside.
3. The matter is remitted to a different Designated Agent for determination afresh of the claims as filed by Respondents.
4. There is no order as to costs.
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