Peter Chitsato v Mavhuradonha High School

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/154/24 CASE NO.
ZIMBABWE HARARE, 9TH
NOVEMBER, 2023 AND 5TH
APRIL,2024
LC/H/655/2023
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 9TH
NOVEMBER, 2023 AND 5TH
APRIL, 2024

PETER CHITSATO
And
MAVHURADONHA HIGH SCHOOL

Before the Honourable Kachambwa J,
Judge;

For the Appellant: E. Seremani (Legal Practitioner)

For the Respondent: RKH Mapondera (Legal Practitioner)

KACHAMBWA, J:

The Appeal

1. This is an appeal against the decision of a labour officer who dismissed the
   Appellant’s claim that his contract of employment had been unlawfully terminated by the school. The appeal was heard on the 8th of
   November 2023. At the end of the hearing the appeal was dismissed with the court giving an extemporae judgment. The Appellant subsequently on the 1st of
   December 2023 asked for reasons for the decision.


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2. The appellant was a board member of the respondent’s board of governors.

The respondent is a school. There arose an administrative problem within the school and the board resolved that the appellant be assigned on behalf of the board to help in the administration while the appointment of an employee would be processed. He was paid an allowance for his work. Later on the board resolved that his assignment had come to an end. He challenged the decision and alleged that he had in fact been employed by the school as a permanent employee. To that end he alleged that his contract of employment had been unlawfully terminated and that he was owed terminal benefits. His case was taken before a labour officer who resolved that there was no contract of employment. He was on a special assignment to plug an administrative problem. He was not owed any terminal benefits. He appealed.

Grounds of Appeal

3. The appellant raised seven grounds of appeal as follows;

“1. The Labour Officer’s Tribunal (sic) erred and misdirected itself in that it could not establish that an employer/employee relationship existed between the parties.

2. The Labour Officer’s Tribunal erred and misdirected itself in finding that the claim of unfair dismissal and non-payment of terminal benefits lacks merit.


3. *The Labour Officer’s Tribunal erred and misdirected itself in finding*


that the arrangement was for a special work assignment for the two board members and for a specific period of time.

4. The Labour Officer’s Tribunal erred and misdirected itself in finding that Appellant was a board member led by Mr Chivero which was found illegitimate by the Supreme Court.

5. The Labour Officer’s Tribunal erred and misdirected itself in finding that Appellant failed to avail evidence to substantiate his claim that he was appointed mission Administrator on a permanent basis from June 2010.

6. The Labour Officer’s Tribunal erred and misdirected itself in relying on the Supreme Court judgment when the judgment was not about Mavhuradonha board and Appellant was not a board member.

7. The Labour Officer’s Tribunal erred and misdirected itself when it misinterpreted the Labour Act [Chapter 28;01] that Appellant should have produced a contract of employment when it is not a legal requirement to produce a contract of employment to prove whether the Appellant was employed as an Administrator or not”.

4. The respondent opposed the appeal and said that there was no error or misdirection at all. The labour officer’s findings were said to be correct.

The Argument In Court

5. The Appellant insisted that the labour officer misdirected himself by finding that there was no employer/employee relationship. He said that the conduct of the parties showed that there was a tacit relocation of the contract when a new board of directors took office. The Appellant was said to have become a full time employee.

6. On the other hand the respondent maintained that the real issue the labour officer had to determine was the existence or non-existence of an employer/employee relationship. It said that the essential elements for such a contract did not exist the major one of which was the salary. There was no salary. The decision of the board of directors was said to be clear that the board had appointed two of its members to assist with administration. It was a stop gap measure as the board would eventually appoint someone. This was not an appointment to employment but an action by the board to put its own members in place in order to solve a problem temporarily.

Analysis

7. The labour officer’s judgment is very lucid and follows the actions of the board very clearly. The actions of the board are normal in such administrations. If the board was appointing its own members to permanent positions of employment there would be clear process of appointment with the issues of salary and other terms of employment attended to. The board resolution was clear that it wanted to second and not to employ its own members. This was for arresting the situation. The appellant is clearly trying to take advantage. It is unfortunate that the board went to sleep instead of making sure that it made the necessary appointments fast and not allow the situation to last long. If the appellant thought that his appointment had mutated to that of an employee, a permanent employee for that matter, it was also incumbent upon him to regularise that appointment rather than wait for the termination to then start this fight. He was otherwise being deceitful to the duty of looking after the interest of the school as a board member. He was now seeking to benefit from his position instead of making sure that the school is managed properly by the efficient appointment of personnel.

8. The appellant’s appeal is on the labour officer’s factual finding that the appellant was not an employee let alone a permanent employee. This is the sum of the appeal. The law is very clear on challenges on factual findings. It says that an appeal court must be slow in interfering with such findings. A long list of cases on this point now exists. One of the classic cases on this point is **Hama v NRZ** 1996 (1) ZLR 664 where at page 670 the court says that:
 CASE NO.
LC/H/655/2023

“The general rule of law, as regards irrationality is that an Appellate Court will not interfere with a decision of a Trial Court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the Trial Court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion:

Bitcon vs Rosenberg 1936 AD 380 at 395-7; Secretary of State for Education and Science vs Metropolitan Borough of Tameside [1976] ALLER 665 (CA) at 671 E-H.

CCSU vs Ministry of the Civil Service [1984] 3 ALLER 935 at 950H.”

9. The appealed judgment does not come anywhere near the irrationality that is referred to. Even the appeal itself does not take us anywhere near this standard. There is no need to interfere with the decision.

Disposal

In the result the appeal must fail. On the issue of costs there is no reason shown for these not to follow the results and there is no reason discernable on its own either. Therefore it is held that;

The appeal be and is hereby dismissed with costs.


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