Nimrod Muneri v Westlake Tyres

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/117/16
HARARE, 10 FEBRUARY 2016
CASE NO. LC/H/975/14
JUDGMENT NO. LC/H/117/2016
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/117/16

HARARE, 10 FEBRUARY 2016			      CASE NO. LC/H/975/14

AND 4 MARCH 2016

In the matter between:-

NIMROD MUNERI					Appellant

And

WESTLAKE TYRES				Respondent

Before The Honourable E. Muchawa, Judge

Appellant	In person

For Respondent	B. Zhou

MUCHAWA, J:

This is an appeal against an arbitral award.

The appellant was engaged by the respondent sometime in January 2014 until May 2014 in the capacity of a welder.  When such engagement was terminated, the appellant lodged a complaint with the Ministry of Labour.  Failing conciliation, the dispute was referred to arbitration with the following terms of reference;

To determine whether or not the claimant was an employee and remedy thereof.

To determine whether or not claimant was lawfully dismissed, if he was an employee and the remedy thereof.

To determine whether or not he was paid public holidays worked and the remedy thereof. (sic)

The arbitrator found that the appellant was an employee of the respondent on a contract basis and that such contract terminated upon completion of the job.  The termination was found to have been lawful and further that as a contract employee, he was not entitled to be paid for public holidays worked, but for the completion of the assigned task.

The appellant is disgruntled with the arbitrator’s findings and has put up seven grounds of appeal which are;

The Honourable Arbitrator grossly erred in his analysis that claimant was not a permanent employee when claimant actually worked five (5) months continuously.

The Honourable Arbitrator grossly erred by stating in the Award on paragraph seven that respondent’s contract with Madenyika was finished as applicant was not employed by Madenyika but by the respondent Mr Zhou.

The Honourable Arbitrator showed massive bias against appellant as respondent in his submission first stated that appellant was not his employee and when Mr Madenyika was called as witness he stated that they were both employed by respondent.  When the witness (Mr Madenyika) was called he indicated that appellant got a job as a welder at respondent and the two parties agreed on terms and conditions.

Respondent’s position that claimant was a casual worker for five months is what leads to the unlawfulness of the dismissal as the laws of the land restricts (sic) a casual worker up to six weeks.  Reference section 10 (3) of the Labour Amendment No. 17 of 2007.

In the Arbitral hearing respondent’s Managing Director (Mr Zhou) was texting Mr Madenyika through his mobile phone not to witness in favour of the appellant, this showed that he was aware that appellant was employed on permanent basis.

The Honourable Arbitrator grossly erred by determining that appellant was on a task contract (completion of job) when appellant was on a contract without limit of time.

The alleged statements attributed to applicant’s witness (Madenyika) are the Honourable Arbitrator’s creation and imagination as instead the witness told the hearing that was also an employee of respondent.

The appeal is opposed.  Both parties were however self actors and did not scrutinize the grounds of appeal as to whether they raise a question of law as prescribed by section 98 (10) of the Labour Act [Chapter:10] which requires that appeals from an arbitrator be on a question of law.

It appears to me that the appellant is largely dwelling on questions of fact.  In particular in grounds of appeal 2, 3 and 7, the appellant dwells on the question of whether or not his employer was Madenyika or the respondent and questions the conclusions of the arbitrator in respect to the testimony of Madenyika.

Appellant is laboring under a clear misunderstanding of the findings of the arbitrator.  The arbitrator did not find that the appellant was employed by Madenyika.  Rather he accepted that Madenyika is the one who referred appellant to the respondent when the need for a welder arose.  Even in the hearing before me, it was clear that this is the position.  I find no basis to dwell on grounds of appeal 2, 3 and 7 therefore.

Ground 5 of appeal does not relate to the arbitral award but is a new fact which I equally have no reason to detain myself on.  It is not an appeal against the arbitral award.

The remaining issue for my determination is whether or not the arbitrator was correct in the circumstances, in concluding that the appellant was not a permanent employee but was on a contract for an assigned task.  That would deal with grounds 1, 4 and 6 of appeal.

Appellant alleges he was employed as a welder on a contract without limit of time in January 2014 until May 2014 when his contract was verbally terminated.  He claims there was an agreement he would be paid monthly but in practice he was paid weekly.

Further, the appellant claims he worked continuously for a period of five months, from January to May 2014 and since the contract did not specify its duration or date of termination, it should be deemed to be a contract without limit of time in terms of section 12 (3) of the Labour Act.

Appellant prays for the setting aside of the arbitral award and his reinstatement without loss of salary and benefits or alternatively, damages in lieu of reinstatement.

The respondent’s submissions, as supported by appellant’s witness at arbitration paint a different picture.

The respondent is in tyre business and claim their line of work would not require a full time welder.  They are based at an address in Southerton and required a steel structure in Willowvale.  A Madenyika was working on this and he indicated there was need for a welder and he referred appellant to respondent resulting in appellant’s engagement.

It was not disputed that the appellant was paid weekly at the rate of $33.00 per day which works to 60% above the prescribed rate by the relevant national employment council.  Appellant argued that this points to his employment having been on a contract basis rather than permanent basis as respondent wold not have reasonably taken a new permanent employee at that high rate.

The respondent also alleged that the period of engagement of the appellant was not unbroken as he worked during these times, as needed;

13 – 17 January 2014

27 – 31 January 2014

5 February – 17 April 2014

The weekly payments are also said to point to a contractual relationship of the nature alleged by respondent.  It was questioned why the appellant never lodged any complaint relating to holiday pay and a written contract.

It was most telling when the appellant stated that he had even requested to be employed as a contract worker so as to get more money because of his vast experience.

Section 12 (3) of the Labour Act relied on by both parties states

“A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time.” (my emphasis)

In the light of the submissions of the respondent, the testimony of Madenyika before the arbitrator, the provisions of the Labour Act, and appellant’s own submissions, the arbitrator cannot be impugned for his findings.

I have used the approach in Ebrahim v Pittman N.O. 1995 (1) ZLR 176 (H) at p 184E – 185F to conclude that in balancing the probabilities presented, it seems more plausible that the appellant was engaged on a contract for the performance of a specific welding task.  There was no contract without limit of time.

The proviso to section 12 (3) which deems a casual worker to be one on a contract of employment without limit of time once such period of engagement exceeds a total of six weeks in any four consecutive months is inapplicable in casu.  The arbitrator’s finding was not that the appellant was a casual worker, but that he had a contract for the performance of some specific service.

There is therefore no merit in grounds 1, 4 and 6.

Accordingly the appeal is dismissed in its entirety for lack of merit.