Spiwe Chingozho v General Leasing T/A G.L Communications Pvt Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/258/25
HARARE, 12 FEBRUARY 2025
CASE NO. LC/H/1316/24
SPIWE CHINGOZHO
APPELLANT
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/258/25 HARARE, 12 FEBRUARY 2025		CASE NO. LC/H/1316/24

SPIWE CHINGOZHO	APPELLANT

And

GENERAL LEASING T/A G.L	RESPONDENT COMMUNICATIONS PVT LTD

Before the Honourable Kudya J;

For the Appellant	- L. Toendepi	Legal Practitioner For the Respondent	- M. Chakandida	 Legal Practitioner

KUDYA J:

On 12 February 2025 when this matter came up for hearing as an appeal at the instance of the appellant employee against the respondent employer, parties agreed that, judgment be reserved from 24 February 2025, a date by when the appellant would have filed its supplementary heads of argument. It was also agreed to by the parties that, the bar operating against the respondent employer vis late filing of its response be uplifted and that the respondent be allowed to file its response outside the time limits set out by the rules. In the same spirit, parties agreed that the appeal be decided based on the papers filed in IECMS. It is against the above background that, this judgment is written out.

The brief facts of the matter are that, the appellant and the respondent found themselves before the NEC Communications where they were arguing over the status of their relationship. Appellant argued that she was the respondent’s employee yet respondent argued that she was

not. In line with the employer-employee debate the appellant was seeking payment for what she titled underpayment of wages. The NEC declined jurisdiction on the matter, resulting in the parties seeking conciliation before a labour officer. When conciliation failed, parties went before the arbitrator who concluded that, appellant was not an employee of the respondent and consequently there was no underpayment claim to determine in that regard.

The appellant was irked by the arbitral decision, so, she appealed to the labour court in the case which is the subject of this judgment. She placed before this court 8 appeal grounds which can be summarised as such:-

1. Arbitrator grossly erred to conclude that, appellant was not an employee yet, evidence led before him confirmed that, she was the respondent’s employee.

3. Arbitrator was wrong to find that there was no oral contract of employment between the parties.

2. Arbitrator grossly erred by not appreciating that, consultancy is an employee construct under Sec 2 of the Labour Act so he was wrong to say that appellant was not an employee.

Arbitrator was wrong to say that, there was insufficient proof of employment status of the appellant yet, evidence showed that, indeed the appellant was an employee of the respondent.

Arbitrator went outside his terms of reference, by determining whether appellant was an employee or consultant of the respondent yet, the terms of reference were for him to simply decide whether or not appellant was an employee of the respondent or not.

Arbitrator grossly erred to dismiss the letter of confirmation of employment which letter was not disputed by the respondent.

Arbitrator grossly erred to find that the NEC dismissed appellant’s claim yet the NEC did not deal with the merits of the claim as it declined jurisdiction to deal with the matter.

Arbitrator was wrong to deal with the underpayment issue yet he had found that there was no employment relationship between the parties.

In the result, the appellant prayed that, the appeal be allowed, the arbitral decision be set aside and be substituted with an order that, the claimant’s claim is granted with costs and that there be no order as to costs in the instant appeal.

In response to the appeal, the respondent maintained in limine that:-

Appeal is fatally defective as it is addressed to the arbitrator instead of to the Registrar of the Labour Court.

Appeal is fatally defective as it is in breach of Form LC4 which contains the mandatory clause of the 10 days dies within which the respondent has to file its response and heads of argument.

Appeal was filed out of time that is beyond the 21 day limit set by the rules of the Labour Court.

Appeal is bad at law as it cites a non-existent respondent. The correct respondent’s name is General Leasing Pvt Ltd T/A General Leasing Communication and not General Leasing T/A General Leasing Communication.

In the result, respondent prayed that, on the success of the points in limine, the appeal be dismissed with costs on the higher scale.

On the merits plane, the respondent maintained that:-

1. Grounds 1 to 4

There is no merit in those grounds. Appellant gave contradictory evidence before the arbitrator so arbitrator was correct to conclude that appellant aprobated and reprobated. Arbitrators’ decision was well reasoned as it was clear from evidence led that, there was no employer employee relationship between the parties.

Ground 5

This ground is disputed. It contradicts ground 1 where appellant says arbitrator misdirected to find that no employer employee relationship existed between the parties yet evidence was led

and conclusions made per the law so a finding was indeed made on the employer employee debate.

Ground 6

This is disputed. Issues around the letter were addressed by the arbitrator. There was no evidence of position held, status whether managerial or not, salary, grade etc. Appellant gave conflicting evidence throughout. Salary on the letter was inconsistent with what appellant claimed was her salary. The reasonable explanation was the one given by the respondent. The letter did not confirm the employment relationship between the parties.

Ground 7

Indeed NEC declined jurisdiction, basis being that, it concluded that appellant was a manager or a consultant.

Ground 8

This is disputed. Arbitrator never determined the underpayment claim. He said there was no need to determine such, since there was no employment relationship the issue therefore fell away. He did not sate whether appellant was under paid or not so he did not misdirect himself on that.

In the result, the respondent prayed that the appeal be dismissed with costs on the high scale. For a neat disposal of the issues the points in limine are addressed first.

Appeal filed out of time

In response to this point, the appellant maintained that, she filed her appeal within the 21 days dies induciae, if regard is had to the fact that, some of the days in between were public holiday days and weekend days, which are not reckoned as filing days. See Section 4(1) Labour Court rules 2017.The point in limine having been put to rest by the appellant’s calculus is therefore dismissed for lack of merit.

Appeal addressed to arbitrator instead of Registrar Labour Court

The point is conceded by the appellant but she hastens to request the court to turn a blind eye to the technical breach so that case be disposed of on the merits. See Mapondera v Freda Rebecca Mine SC81/22.It is noteworthy that, accuracy in pleadings does well for the smooth administration of justice but it would be an affront to the ends if technical breaches like the one at hand were to stand in the way of the resolution of a matter on the merits. It is in the spirit of Mapondera (Supra) that the court excuses the breach and dismisses the point in limine.

Breach of LC 4

This breach is similarly conceded and equally excused using the reasoning in Mapondera (Supra). The point is therefore dismissed.

Non existent respondent

Mapondera (Supra) is apt in the disposal of this point. It is apparent from all the pleadings that the respondent is clear on who appellant is suing so no meaningful purpose would be served by dismissing the appeal on account of this point. In any event, the appellant notes in her supplementary affidavit that even in its Board resolution, the respondent uses the wrong and correct citation of its name interchangeably so there is nothing much ado about the miscitation argument which can be used to dismiss the matter. This can be cured by a simple amendment. The court is therefore persuaded that, the Mapondera reasoning be applied to this point and the point in limine be dismissed.

In the ultimate, all point in limine having been dismissed what awaits is the determination of the merits of the appeal.

Grounds 1 to 4

These have been lumped together by the respondent in its response to the appeal. The court is equally convinced that lumping them all together would do justice to the appeal as they speak essentially to the same issue of whether arbitrator rightfully or wrongly concluded that appellant was not an employee of the respondent.

It is settled that, the trier of fact decision cannot be lightly interfered with. See Nyahondo v Hokonya and others 1997(2) ZLR457(S). In the case at hand, it is critical to assess how the arbitrator reasoned to come to the conclusion which he arrived at. It is possible that this court might arrive at a different conclusion on the same facts but that alone does not suffice for the court to interfere with the trier of fact’s decision. Much more is required. See Hama v NRZ on gross unreasonableness and irrationally.

In the case at hand, the appellant says the the arbitrator lost sight of the law and Section 2 of the Labour Act which classifies a consultant contract as that of an employee. She reasons therefore that, had the arbitrator used that construct, he would have found in her favour. She however loses sight of the fact that, the arbitrator did not base his conclusion on a single issue. In fact it was the cumulative effect of all the issues in the facts of the case that caused him to lean in favour of accepting the respondent’s story as opposed to that of the appellant.

It is settled that, labour matters are decided on proof on a balance of probability. See ZESA v DeraSC79/98. In the case at hand, it is noteworthy that, the evidence relied on by the appellant for arbitrator to find for her had so many holes resulting in the arbitrator concluding that she was blowing hot and cold. To that extent her version of events became improbable when viewed against the version of the respondent.

To start off with, the letter of 30 April 2014 was read by respondent as only a letter to the bank to facilitate appellant’s access to a bank loan. It bears diametrically opposed salary figures with the ones appellant was claiming. It was thus not unreasonable for the arbitrator to accept that the letter was just a fraud to the bank meant to facilitate access of banking facilities to appellant. There was therefore nothing remiss in the reading of the probative value of the letter by the arbitrator to be just what it was and not a proper confirmation of employment later.

Arbitrator reasoned correctly in the court’s view, when he quizzed why appellant would claim a salary lower than the one in the letter she sought to rely on. The clear contradiction was properly construed against the appellant who wanted to rely on the letter to found her claim.

A reading of the arbitral award does not support appellant’s argument that, arbitrator was not aware of the dominant impression and control test. See Dube vs Grace Ministry SC-104/21. In fact, it is clear from the award that, he appreciated such principles but reasoned simply that,

the facts of the matter before him were not consistent with such principles, hence his throwing out of the claims.

There was nothing wrong in the arbitrator accepting the letter as mere confirmation to the bank just to assist the employee to access banking services. In fact the stark contrast on the figures bears testimony to the fact that such letter was not written as confirmation of the employment between the 2 per se but as stated above.

The payslips did not add much to the appellant’s claim. In fact, all they pointed out to was that, appellant was receiving some form of payment from respondent for her services and that she sought some raise of the payment in some instances. That alone would not speak to an employment contract between the parties. Even if it were construed as the consultant employee contract that would still not put the matter on the pedestal of a claim underpayment of wages which appellant wanted to pin it on.

The fact that appellant accessed the respondent premises frequently and offered service could not mutate into an employer employee relationship where the employer could be said to have underpaid the appellant. It is clear from the above reasoning that, the arbitral decision cannot be upset on the basis of the grounds stated above .Appeal grounds 1 to 4 being without merit should fail.

Ground 5

It is settled that an arbitrator has to conform self to the terms of reference before him. See Tamanikwa v ZIMDEF SC73/14. In the case at hand, the terms of reference were whether appellant was an employee or not. Arbitrator concluded on the evidence that she was not and at the least could be adjudged a consultant. His conclusion of how the appellant could be adjudged a consultant did not detract from the fact that he decided the issue which was before him which is, whether she was an employee or not. He ruled that she was not, and, found support for his decision in the evidence led before him. He can thus not be said to have overstepped his mandate. The ground being meritless is dismissed.

Ground 6

This ground was dealt with at length when the court discussed grounds 1 to 4 and the court commented on how the arbitrator assessed the letter. Sentiments expressed in ground 1 to 4 apply to this ground with equal force. The ground is therefore dismissed for lack of merit.

Ground 7

A reading of the arbitration award does not at all say that NEC dismissed appellant’s claim on the merits. It simply restated the fact that, NEC declined jurisdiction and in light with that arbitrator stated that having concluded that no employee relationship existed there was no need to determine the underpayment claim. He was correct in saying so. Underpayment was premised on employee status of appellant. Such had been ruled not to exist so; the underpayment claim had nothing to rely on. See McFoy v United Africa Company 1961(3) All ER 1169.

The ground is without merits so should fail.

Ground 8

Sentiments expressed in ground 7 apply to this ground with equal force. The ground is dismissed.

In the ultimate, all appeal grounds being without merit, they be and are hereby dismissed.

Costs

A prayer for punitive cost was made but, there is nothing exceptional about the case calling for such a scale. See Mahembe v Matambo HCB13/03

The ordinary scale shall therefore be applied.

IT IS ORDERED THAT:

Appeal being without merit in its entirety ,it be and is hereby dismissed with costs on the ordinary scale.

Muvhami Attorneys- Appellant’s Legal Practitioners

Chakandida and Associates- Respondent’s Legal Practitioners