Shalone Girandera and 9 Others v Population Services International

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 SEPTEMBER 2024 & 19
JUDGMENT NO. LC/H/124/25
CASE NO. LC/H/668/24
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 18 SEPTEMBER 2024 & 19

MARCH 2025

JUDGMENT NO. LC/H/124/25 CASE NO. LC/H/668/24

SHALONE GIRANDERA AND 9 OTHERS	APPELLANTS

Versus

POPULATION SERVICES INTERNATIONAL	RESPONDENT

Before the Honourable Kudya J;

This is an appeal at the instance of the appellant employees and a cross appeal at the instance of the respondent employer.

The background to the matter is that the appellants and the respondent were in a contractual arrangement where the appellants were providing roving merchandising services to the respondent. They would go around supermarkets like TM and Spar advertising the respondent’s products. In return they would be paid for those services. In April 2020 they were stopped from carrying out their merchandise services by the respondent citing the COVID 19 pandemic. As at the time when they were stopped from giving their services their contracts with respondent had not yet effluxed by time.

They were unhappy with their work stoppage, in particular one Girandera found her way before the labour officer where a ruling was made and confirmed by the Labor Court. The confirmation was appealed to the Supreme Court where on 21 July 2023 it was ordered by consent that the appeal be allowed with no order as to costs, that the application for confirmation of a ruling by a labor officer be struck off the roll with each party bearing own costs and that the matter be referred to a Designated Agent (DA) National Employment Council Education and Welfare Institutions for the determination of the dispute between the parties

. The Supreme Court order saw the parties appearing before DA Mutsago who issued a determination dated 29 October 2024. The DA’s determination of 29 October 2024 did not go down well with both parties. This led to the appellants appealing and respondent’s cross appealing the said order. This judgment therefore addresses both the main appeal and the cross appeal.

To avoid confusing the record parties throughout this judgment shall be referred to as Girandera and others on one hand and Population Services International (PSI) on the other hand. The issues which dogged Girandera and others and Population Services International’s relationship were the following;

Nature of the contract between them, whether it was an employment relationship or an independent contractor relationship.

Whether there was unlawful dismissal of Girandera and others.

Whether Girandera and others were owed back pay for April 2020 to September 2020.

Whether Girandera and others were owed cash in lieu of leave.

In disposing of the issues stated above, DA Mutsago ruled that, indeed Girandera and others were Population Services International employees and not independent contractors. He however ruled that Girandera and others had not been unlawfully dismissed as their operations were hampered by the COVID 19 pandemic. To that extent ,they could not claim any back pay for no work rendered during that period. He concluded further that Girandera and others had not demonstrated by evidence the extent of their leave days entitlement and owing. Such a resolution of the matter prompted this appeal and cross appeal.

Girandera and others’ appeal ground can be summarised as such;

DA erred at law by dismissing claim for unlawful dismissal on the basis of supervising impossibility yet such deference was not satisfied.

DA erred to dismiss the unlawful dismissal and back pay claims on the basis of COVID 19 yet no evidence was led to show that indeed COVID 19 and lockdown affected Population Services International contractual obligations with Girandera and others. This was so, if regard is had to the fact that, the disengagement pre dated the official supermarkets’ notices by 5 moths suspending promoters’ services.

DA erred to dismiss the unlawful dismissal claim yet Population Services International had failed to show that it terminated the contracts per the terms of the contracts especially part

4 which laid out the circumstances under which the contracts could be terminated. Consequently, he erred to dismiss the back pay claim.

DA erred to dismiss the cash in lieu of leave claim (CIL) yet impliedly Girandera and others should have been awarded such, given the fact that denial of same was based on them being branded independent contractors hence not eligible for CIL.

In the result, Girandera and others prayed that, the paragraphs of Mutsago’s award dismissing the claims for unlawful dismissal, back pay and CIL be set aside and be substituted with an order upholding the unlawful dismissal claim and ordering payment of back pay and CIL as clearly computed in their claims.

On the other hand, Population Services International in response stated in limine that the claim had prescribed to the extent that there was nothing to detain the court on this appeal. It said Girandera and others were obliged to have gone before the DA with their claim within 2 years of the alleged breach in keeping with See 94 of the Labor Act on prescription.

On the merits plane, Population Services International stated that DA correctly dismissed the unlawful dismissal claim, back pay and CIL claims. It however counter appealed that, DA should have ruled that Girandera and others were independent contractors and not employees. In the result it prayed for the success of its cross appeal and the dismissal of Girandera and others’ appeal. In

its view, the decision on the employment status ran foul of the contractual provisions between the parties which stipulated that Girandera and others were independent contractors. In its view Mutsago could therefore not contract for the parties contrary to the engagement terms agreed upon by the parties.

In response to the cross appeal, Girandera and others argued in limine that, the cross appeal should be struck off for being premised on vague and embarrassing grounds which did not set out clearly how it could be said that Mutsago contracted for the parties.

On the merits, they argued that, Mutsago correctly used the economic realities test, dominant impression test and contractual test to conclude that, notwithstanding what the contracts seemed to suggest Girandera and others were indeed employees of Population Services International when they conducted their merchandising duties.

In their view, Mutsago’s decision could not be faulted if regard is had to factors like:

They reported to Population Services International during their duties.

Population Services International defined their responsibilities.

Population Services International could terminate their contracts at any time prior to the agreed time.

Population Services International determined amount to be paid for services rendered.

Population Services International paid Girandera and others each USD270 per month and subjected them to its Code of Conduct and ethics.

Girandera and others were prohibited from delegating or assigning their tasks to anyone else.

Girandera and others’ non availability could lead to termination of their contracts.

Girandera and others’ remuneration was subject to PAYEE and NSSA.

Invoices for payments were generated by Population Services International.

In the result, it was not difficult to conclude that Population Services International and Girandera and others were in an employer – employee relationship. There was thus no basis to fault DA Mutsago’s decision in that respect. DA only interpreted the contracts. He did not create

contracts for the parties. Girandera and others therefore prayed that the cross appeal be dismissed with costs.

On the hearing date, Population Services International on one hand and Girandera and others on the other hand, stuck to their appeal and cross appeal positions. By the same view, they also stuck to the points in limine which they both raised. The court indicated that it would rule on the points in limine and the merits of the appeal and cross appeal all at once.

Points in limine

Prescription

Population Services International took the point that the matter had prescribed. It therefore prayed that the matter be struck off with costs on account of the fact that it was prescribed. From the factual history of the matter, it is common cause that before coming to the DA Mutsago parties had been to the Labor Officer, the Labour Court and Supreme Court respectively on the same subject matter.

Population Services International urged the court to disregard the period between the Labour Officer proceedings and the Supreme Court proceedings and decision citing the fact that such were a non event as Girandera and others were barking at the wrong tree all that while, thus offending the timelines set out by the prescription provision in the Labor Act.

Girandera and others argued that, they had not been sitting on their laurels but had been attempting to enforce their rights albeit in the wrong fora as borne out by the Supreme Court Consent order.

The legal proposition and case cited by the parties on prescription are without doubt, and their repetition does not serve any meaningful purpose in this judgment. It need be noted also that, Girandera and others sought to protest the taking of the point citing the fact that it should have been raised at the previous proceedings.

It is settled that a point of law can be raised at any time as long as it does not prejudice the other party. See Muchakata v Netherburn Mine 1996(1) ZLR 154(S). There is no doubt that the prescription argument is a point of law. See Sable Chemical Industries Ltd v EasterBrook SC18/10

on what a point of law is. Given the above background, nothing stopped Population Services International from raising the point. No prejudice could flow from raising an issue which in Population Services International’s view was dispositive of the matter.

Being that as it may, it is clear that, for all the while, the parties have been keen on the issue dogging them to be addressed hence all the proceedings from the Labor Officer and now back to the Labor Court. The dispute remained alive all that while and could not be extinguished by the fact that it was entertained in a wrong forum at first. The prescription argument being without merit should be dismissed for lack of merit. It is accordingly dismissed.

Vague and embarrassing cross appeal grounds.

Girandera and others prayed that the cross appeal be dismissed with costs, on the basis that, Population Services International had failed to detail how it claimed that Mutsago had contracted for the parties.

A reading of the cross appeal speaks to a simple issue that in Population Services International’s view, there was no employer employee relationship between the parties and instead an independent contractual position was between same. It placed reliance on the title of the contract and its interpretation of the contract terms.

Girandera and others however, viewed the same issue differently and concluded that DA Mutsago was right in his interpretation of the contract which was between the parties.

It is clear from the 2 distinct position of the parties that, the question of the contract status was a live issue that had to be determined. It formed the bedrock of the rest of the ancillary claims. The cross appeal grounds therefore pass the test for concise and precise appeal grounds set out in Kunonga v Church of the Province of Central Africa (CPCA) SC27/17. The point in limine vis the propriety of the cross appeal being without merit it be and is hereby dismissed.

Turning to the merits of the dispute, the parties the court will not determine the cross appeal and the main appeal singularly but would address all the grounds cumulatively thereby addressing each issue which is under contest.

Nature of contract

Mutsago rightly observed in the court’s view, that, a determination of this issue was the cornerstone of all the claims made by Girandera and others. To resolve that issue, he was favoured with the contract between the parties whose critical components have already been stated above and deserve no restatement.

He went beyond that, and reasoned that even if Population Services International cited Girandera and others as contractors it was clear from the full fledge of the terms that the contract passed the three employment tests at law. These are the Dominant Impression Test, the Control Test and the Economic Realities Test. See Dube and Others v Awake Grace Ministries SC104/21.

See also Madhuku Labour Law in Zimbabwe, Directory Publishers, 2015 p25-27

It is clear from a reading of his award, that, he was alive to the legal principle that, he could not contract for the parties. See Magodora v Care International 2014(1) ZLR397(S).

The question which this court on appeal has to answer is: Can it be said that; the DA’s conclusions were outrageous and defied common sense? See Hama v NRZ1996(1) ZLR664(S).

It is a well-established principle of our law that a trier of fact decision cannot be lightly interfered with. See Nyahondo v Hokonya and others1997(2) ZLR457.

It is clear that the cumulative effect of the evidence before him was that, an employee and employer relationship existed between the parties. As already stated, he relied on all the facts of the matter in the context of the contractual terms and the legal tests, as tools which helped him conclude that an employer employee relationship existed between the parties. His conclusion cannot by any stretch of imagination be styled a conclusion arrived at by a DA who had taken leave of his senses. See ZINWA v Mwoyounotsva 2015 (1) ZLR 935.

The conclusion of the parties’ status in the contract was properly arrived at and cannot be vacated. The cross appeal being ill founded based on this ground should fail.

Supervening Impossibility

Effect of a supervening impossibility phenomenon is set out Watergate Pvt Ltd v Commercial Bank of ZimbabweSC78/05 where Sandura JA as he then was quoted Boshoff JP in Bischofberger v Van Eyk 1981 2SA WLD611 saying:

When the court has to decide on the effect of impossibility of performance on a contract the court should first have regard to the general rule that impossibility performance does in general excuse the performance of a contract	"

It is not beyond doubt that COVID 19 was supervising impossibility. From a factual perspective, Girandera and others say, the principle of supervening impossibility was wrongly applied if regard is had to the fact that their job losses came before the supermarkets where they were operating from wrote letters to among other customers the PSI citing the fact that, people like Girandera and others could not continue working in their supermarkets due to due to COVID 19 pandemic.

The court takes judicial notice of the fact that, as at April 2020 COVID 19 was already in full swing occasioning parties to apply for essential service clearance passes to move around and to access services. There was therefore nothing irregular in the DA’s determination when he concluded that, even though the stoppage came earlier than the letters from the supermarkets, it was abundantly clear that as at April 2020 COVID stood out as stopping Population Services International to give full effect to its contractual obligations. There was therefore, nothing remiss in the conclusion arrived at by DA Mutsago in this regard. The appeal ground based on supervening impossibility should therefore fail.

Back pay and unlawful termination

These two issues are treated together because the success of one is the success of both and the reverse. DA Mutsago reasoned clearly, and to this court’s satisfaction that, once Population Services International was hindered in its satisfaction of the contract by COVID 19 there was no unlawful dismissal to talk about. Equally, there was no back pay to talk about. Such a conclusion is without blemish because, the facts of the case as already stated above, demonstrate clearly that Population Services International could not do anything more than call off the contracts on account of the COVID 19 Pandemic. It is clear that Girandera and others were not rendering essential

services which could excuse them from the ban which stopped all non essential services then. In the same vein, because they did not render any service during the period in dispute, they equally could not claim any pay for work not done. The grounds on unlawful dismissal and back pay should therefore fail as reasoned above.

Cash in lieu of leave

DA Mutsago stated clearly in his determination that Girandera and others could get CIL but they had to demonstrate the extent of what they were owed. Girandera and others baldly asserted that they had to be paid CIL because they were employees and not independent contractors. Population Services International says CIL claims correctly fell of because Girandera and others were independent contractors.

It is settled that he who alleges must prove. See Circle Tracking v Mahachi SC4/07. In the case at hand Mutsago wanted Girandera and others to show him the extent of their CIL claims but they could not so. It was therefore not his fault that they failed to give him evidence which he could use to dispose of that claim. His conclusion can therefore not be faulted. The CIL claims were therefore correctly denied so the determination cannot be upset on that basis.

Costs

Each party prayed for costs. The law should follow its course that costs follow the cause. On account of the fact that, both the main appeal in its entirety and the cross appeal in its entirety lack meri,t is just and equitable each party be made to bear own costs.

IT IS ORDERED THAT:

The main appeal in its entirety and the cross appeal in its entirety being devoid of merit they both be and are hereby dismissed.

DA Mutsago’s decision is to stand as it is.

Each party bears own costs.

Thondhlanga and Associates- Appellants legal practitioners Kantor and Immerman- Respondent’s legal practitioners