Muchazvitunga Chipandire v Agri-Fresh Produce

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LCH312/24
HELD AT HARARE 23RD JULY 2024 AND
CASE NO R-LC/H/778/23
In the matter between
MUCHAZVITUNGA CHIPANDIRE
APPELLANT
And
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IN THE LABOUR COURT OF ZIMBABWE
Held at Harare 23rd July 2024 and

In the matter between
MUCHAZVITUNGA CHIPANDIRE
And
AGRI-FRESH PRODUCE

JUDGMENT NO LCH312/24
CASE NO R-LC/H/778/23

APPELLANT
RESPONDENT

BEFORE THE HONOURABLE MAKAMURE JUDGE.

FOR THE APPELLANT : IN PERSON
FOR THE RESPONDENT: T. MAKANDA (DIRECTOR)

MAKAMURE J:
This is an appeal against a decision made by a Designated Agent(DA).

The following are the grounds of appeal and I quote:

‘1. The arbitrator erred at law in convicting the appellant for fraud when circumstances showed that there was no intention to defraud respondent.

2. The arbitrator erred at law in imposing the maximum penalty of dismissal at first conviction without giving any reasons. The decision was arbitrary and ought to be set aside.

3. The arbitrator did not put into consideration the confirmation letter of employment flouting the labor practice law on appellant’s part as evidence of an employee of Agri-Fresh Farm produce (sic). The arbitrator instead considered false statements of affidavits of Norman Chisaka and Elizabeth Chapwanya of Agri-Fresh Farm produce employees.


4. The judgement imposed by the arbitrator to the appellant was improper as he did put in to consideration issues complained in the heads of arguments file of records (sic).’

**Preliminary issues**

At the commencement of the hearing preliminary issues were raised on behalf of the respondent. These were that the grounds of appeal were based on falsehoods and that the grounds appeared to be based on a different matter. In addressing the issues, it was argued on behalf of the respondent that the appellant wanted to defraud the respondent company by making unsubstantiated claims before the DA. It was submitted under the circumstances that the DA did not err and the appeal had no merit and should therefore be dismissed. In response the appellant told the Court that he was formally employed by the respondent company and that the respondent represented by the its director issued a letter confirming that he was its employee. For that reason, it was submitted that the DA erred by not ordering the payment of what was due and owing to him. The addresses on behalf of both parties related to the merits of the matter. In **TELECEL Zimbabwe (Private) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe HH446/15** it was held that a preliminary issue should only be raised if it had the likelihood of disposing of the matter. In the present matter when the respondent addressed the Court, he could not avoid addressing the merits. Equally the appellant referred to the merits. Each party was simply eager to have its side of the story heard and therefore delved into merits. I found that to be inappropriate. My finding was that the preliminary issues were not properly articulated and proved. I therefore dismiss the preliminary issues. It is accordingly so ordered. I will proceed to deal with the merits.


Merits

The main grief that the appellant had before this Court was that the DA allegedly failed to put sufficient emphasis or importance on a ‘confirmation of employment letter’ which was authored by the respondent. Such failure submitted the appellant, resulted in the Designated Agent failing to calculate and award him what was due and owing to him from the respondent. When he was asked by the Court whether or not there was a contract of employment between him and the respondent and if so, the terms thereof, the appellant failed to provide the terms of the contract. The appellant relied on the letter confirming that he was an employee of the respondent. Such letter enabled him to travel freely and perform his duties during the Covid-19 pandemic era. He also stated that he expected the respondent and himself to negotiate the terms of the contract. The appellant was not able to provide the Court with the basic salary that he was paid by the respondent, he could not say how many leave days he was entitled to and the amount of overtime claimed and he could also not provide proof that either his contract with the respondent was prematurely terminated or that he was constructively dismissed. He told the Court that the respondent did not reveal to him the terms and conditions of the contract binding them. He then told the Court that the DA was supposed to consider what he (the appellant) was entitled to, for example “leave days, other things and safety issues.”

The position of the respondent was that it supplied vegetables to various clients and that the applicant was employed as and when a task that needed to be performed arose. It was stated on behalf of the respondent that it does not own a farm. As such it relied on other producers. After securing produce then the services of the applicant would be required. Since they relied on supplies from others, they could only be in a position to offer their services once or twice a week. Task persons like the appellant were paid at the conclusion of each task. The appellant was therefore duly paid. As such it was submitted, there was nothing due and owing to the appellant.

When the matter was placed before the DA, the DA found that the appellant failed to prove his claims and therefore dismissed the claims. The appellant was required to prove his case on a balance of probabilities. It is trite that he who alleges must prove. See **Book v Davidson 1988(1)ZLR 365 (S).** In **Astra Industries Limited v Peter Chamburuka SC27/12** it was stated that:

‘The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.’

In **British American Tobacco Zimbabwe v Chibaya SC30/19** the Supreme Court held that if it can be said of the evidence that “we think it more probable than not, the burden is discharged but if the probabilities are equal it is not.”

The appellant was not able to tell the Court the basic salary that he was getting or basically the terms of contract binding him with the respondent. The appellant relied heavily on a letter exempting him from travel restrictions during the Covid -19 pandemic period. The letter reads:

‘RE : CONFIRMATION OF EMPLOYMENT FOR MUCHAZVITUNGA CHIPANDIRE ID 61 053608R 61

This letter serves to inform you that MUCHAZVITUNGA CHIPANDIRE is an employee of the mentioned company. Agri-Fresh is an agriculture -based company which specializes in the production and wholesale distribution of fresh farm produce to supermarkets, restaurants, hotels and fruit and vegetable markets. Therefore, this company falls under the essential services sector i.e. the food industry which has been exonerated from th lockdown.


Therefore, kindly allow him to proceed with his journey. For further information and clarity please do not hesitate to kindly contact the undersigned at any given time.

(Signed_

_(T Makanda)’_

The above is a letter exempting the appellant from travel restrictions. The respondent wrote similar letters to two other persons, namely Norman Chisaka and Elizabeth Chapwanya who were also its employees. This was in line with a letter from the Ministry of Industry and Commerce to the respondent company dated 23 April 2020 (page 8 of the consolidated record) exempting it from the lockdown. The Court takes judicial notice of the reality that during the Covid -19 pandemic (the pandemic) era, the country went under lockdown. This was a situation where the Government gave instructions restricting movement of people in order to combat the pandemic. The Government gave strict instructions requiring only persons employed in essential services to travel with permits or letters exempting them from the lockdown. Such letters were authored by the respective employers. It was Government which categorized services as ‘essential’. Such restrictions were reviewed periodically by Government. It goes without saying that supermarkets continued to offer their services. Equally entities which supplied supermarkets with vegetables had to continue working as vegetables are a key component of food sold in most supermarkets. The respondent, from what was presented before this Court, fell under essential services, hence the need to ensure that it complied with Government directives. It therefore issued exemption letters to its employees. The ‘confirmation of employment’ letter issued to the appellant was therefore a letter which respondent wrote in compliance with Government directions. It is not a contract of employment. The DA could therefore not have placed any weight on it in order to award the appellant any of his claims. Indeed, the appellant himself confirmed this when he indicated to this Court that he had hoped to negotiate the terms of his contract with the respondent. He personally did not even know the basic salary earned by employees in the industry that he worked in. This means that the DA had no basis upon which to make any calculations.

The appellant was unrepresented. He therefore may not have appreciated the difference between an arbitrator and a designated agent. In his grounds of appeal, he referred to an arbitrator as having presided over his case when in fact it was a Designated Agent. It is also observed that he referred to a conviction for fraud and yet the matter that he placed before the DA involved claims for terminal benefits, overtime, allowances, leave days and damages in lieu of premature loss of employment. The DA dismissed the claims for lack of evidence. The DA did not convict the appellant of any offence and neither did they dismiss him from employment.

The DA found, correctly in my view, that the appellant did not provide any justification for the claim or claims. The appellant failed to discharge the onus required of him before the DA. There was therefore no error on the part of the DA. He has failed to substantiate the appeal before this Court as grounds 1 and 2 did not relate to the determination by the DA. If such grounds were relevant in the view of the appellant, the Court’s considered view is that they had no merit at all. Ground 4 is meaningless. In fact, the appellant did not deal with grounds 1,2 and 4 at all when he addressed the Court. Ground 3 relates to the letter exempting the appellant from travel restrictions so that he could perform his duties. That letter is not a contract of employment. The appellant has therefore failed to discharge the onus required of him.

All in all, there is no merit in the grounds of appeal either individually or in their totality. The appeal can only fail.


In view of the foregoing,

**IT IS ORDERED THAT:**

1. The appeal be and is hereby dismissed.

2. There is no order as to costs.
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