Kaimbanemoyo Investments t/a Perfect Foods v Takaedza Sixpence & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/372/2016
HARARE, 16 MAY 2016 &
CASE NO LC/H/497/2015
10 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/372/2016

HARARE, 16 MAY 2016 &					         CASE NO LC/H/497/2015

10 JUNE 2016

In the matter between

KAIMBANEMOYO INVESTMENTS				APPELLANT

t/a PERFECT FOODS

Versus

TAKAEDZA SIXPENCE						1ST RESPONDENT

And

PARDON TAURO							2ND RESPONDENT

And

TENDAI CHIPEMBERE						3RD RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	G Karikuimba

For the Respondents	P Tauro

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant had a business contract with International Organization for Migration (IOM) to provide catering and cleaning services. To facilitate execution of such contract, the appellant employed the respondents who carried out the services. They were employed for the period September 2011 to December 2013 as general workers. When the employment relationship was terminated, the respondents lodged a claim for three months’ notice pay each. Their salaries had been $150-00 each.

The arbitrator awarded each of them $450-00 as notice pay for three months. He found that the termination of employment had not been through disciplinary hearings but through notice in terms of section 12 (4) of the Labour Act [Chapter 28:01].

It was found too that the respondents were on contracts without limit of time as the appellant had failed to substantiate its claim that they were on six months fixed term contracts.

The appellant has noted this appeal and is essentially arguing that the respondents were on fixed term contracts of fixed duration which were determined by the business contracts with IOM. Such contracts are said to have been six months contracts. The notice period in terms of section 12 (4) (c) is said to be one month.

It is further argued that the employment contract was terminated at the instance of the respondents who repudiated such contracts. Resultantly, the appellant argues that the respondents are the ones who owe it a month’s notice each as a result of the operation of section 12 (4) and section 12 (7) of the Labour Act.

The respondents counter argue that there is no proper appeal before me as there is no question of law under which the appeal is based. They insist that they never signed any fixed term contract of six months duration, or any contract, for that matter. In their opinion, the arbitrator’s factual finding that the contracts were without limit of time cannot be impugned.

Circumstances surrounding the incorporation of the appellant at the advise of I0M and its taking on of employees already employed by IOM to provide various services, where initially a joint venture between all of them was proposed, was referred to as pointing to the long term nature of the contracts.

It appears to me that the grounds of appeal are questioning the factual finding of the arbitrator regarding the nature of contracts between the parties. There is however no allegation that such finding of fact was grossly unreasonable in the circumstances of this case so as to constitute a point of law, both in form and substance. Reserve Bank of Zimbabwe v Corrine Granger & Anor SC 34-01 at p 6 and Phias Matunze v Lobels Brothers SC-96-02.

The findings of the arbitrator cannot be impugned that the appellant failed to provide proof to the effect that the respondents were on six months contracts. Even before me, such evidence was unavailable and the appellant’s Mr Karikuimba was making flimsy excuses as to their unavailability. His explanation that such contracts were with his brother yet he knew they were crucial to the matter at hand can only mean that such contracts do not exist. He even attempted to produce contracts relating to his other employees other than the three respondents. In addition, the business contracts between the appellant and IOM do not serve any useful purpose in resolving the issue of the nature of the employment contracts between the parties.

It is on that basis that I find that the grounds of appeal do not raise any point of law.

Even if I was to indulge the appellant and take its ground of appeal, there is no reasonable ground on which to depart from the arbitrator’s conclusion as his finding is not contrary to the evidence led, rather, it is supported by the evidence led.

In the circumstances there is no need to consider the appellant’s allegation that sections 12 (4) and 12 (7) entitle it to one month’s notice pay from each respondent.

Accordingly, the appeal is dismissed for lack of merit.