Stellar Mundi (Pvt) Ltd v Farai Bwerinofa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGMENT NO. LC/H/405/25
CASE NO. LC/H/755/25
16 OCTOBER 2025 & 23 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE

JUDGMENT NO. LC/H/405/25 CASE NO. LC/H/755/25

16 OCTOBER 2025 & 23 OCTOBER 2025

In the matter between: -

STELLAR MUNDI (PVT) LTD	APPELLANT AND

FARAI BWERINOFA	RESPONDENT

Before the Honourable Tsikwa, J:

For Appellant: A. Mugandiwa (Legal Practitioner) For Respondent: T. Chikwati (Legal Practitioner)

TSIKWA, J: This is an appeal in terms of Rule 19 of the Labour Court Rules, 2017 against the arbitral award by Honourable Arbitrator T. Mahachi dated 27 May 2025 and served on the appellant on 14 July 2025. The background facts of the matter are as follows:

BACKGROUND FACTS

The respondent was employed by the appellant as a farm manager pursuant to an advertisement done by an employment agent. The respondent assumed duties on 11 July 2023 and was issued with company accommodation, motorbike and other personal protection equipment. The monthly salary was USD$1000.00.

Sometime in June 2024, allegations were raised against the respondent which led to the arrest of the respondent for alleged theft. From May 2024 to July 2024, the respondent did not receive his salary though he was not on suspension. He was only suspended without salary and benefits effective 31 July 2024.

The respondent then approached the Labour Officer seeking to recover the unpaid salaries for the months of May, June and July. At conciliation, the parties failed to reach an agreement and the

matter was referred to arbitration. The arbitrator ruled in favour of the respondent and awarded him the claim for unpaid salaries. The appellant was ordered to pay the respondent no later than 30 June 2025. Aggrieved by the award, the appellant noted an appeal before this honourable court.

On the day of hearing the appeal counsel for the respondent, Mr Mureri could not attend the virtual hearing. A Mr Chikwati appeared. The respondent had also not filed heads of argument and therefore barred. Mr Chikwati was incapacited to make an oral application for upliftment of bar in terms of Rule 26(2)(b) of the Labour Court Rules, 2017 since he was not familiar with the case. He tried to make an application for postponement but dismally failed to justify it as the only reason given was that Mr Mureri had gone to Bulawayo for a funeral. There were no details furnished such as when he went for that funeral such that he could not hand over the file to Mr Chikwati. The mention of a funeral without further details could not have amounted to an emergency justifying a postponement. Having failed to obtain a postponement he could address the court orally because he did not have audience in terms of Rule 26(2).

Rule 26(4)(b) “subject to sub rule (2), the defaulting party shall be barred and the Court may according to the nature of the case, or as the justice of the case requires-

enter a default judgment against the defaulting party; or

proceed to determine the matter.”

Having considered the papers before me I came to the conclusion that the justice of the case demands that I determine the matter as opposed to a default judgment. I then requested counsel for the appellant, Mr Mugandiwa to motivate the appeal, which he did.

GROUNDS OF APPEAL

The Arbitrator misdirected himself, on a question of law, by finding that the mere attendance of the parties before the Labour Officer on two occasions satisfied the requirements of a conciliation hearing per the provisions of Section 93 of the Labour hearing since:

There was no explanation by the Labour Officer of the conciliation process to the parties;

There was no confidence building exercise that was undertaken by the Labour Officer to create an environment conducive for a conciliation process;

No side meetings whatsoever were held;

As far as the gathering of information is concerned all the Labour Officer did was to invite the parties to briefly state their positions;

There was no analysis of the dispute or issues by the Labour Officer; and

No options for settlement were explored by the Labour Officer.

The Arbitrator misdirected himself, on a question of law, by finding that the requirement on the Labour Officer to consult the parties in the formulation of issues to be referred to arbitration imposed by Section 98(4) of the Labour Act was met by the simple reason of the parties having appeared before the Labour Officer on the day the dispute was referred to arbitration. Appearance and consultation are distinct processes.

The Arbitrator misdirected himself, on a question of law, by finding that there was no onus on the Respondent to prove that he was employed by the Appellant but instead that the onus was on the Appellant to prove that the Respondent was a consultant as opposed to an employee.

RELIEF SOUGHT

The appellant’s prayer is for an order that:

The appeal be granted with costs.

The arbitration award by Honourable Arbitrator T. Mahachi dated 27 May 2025 received by the appellant on 14 July 2025 be set aside.

The respondent prays that:

The appeal be dismissed with costs on Attorney-Client scale.

ISSUES FOR DETERMINATION

Whether or not the legal requirements for a valid conciliation were satisfied.

Whether or not the respondent was an employee of the appellant and therefore entitled to the claim for unpaid salaries.

APPLICATION OF THE LAW

Whether or not the legal requirements for a valid conciliation were satisfied.

The appellant submitted that that there was no valid conciliation that preceded the referral of the dispute to compulsory arbitration. According to the appellant, section 98(4) of the Labour Act [Chapter 28: 01] requires that the Labour Officer, before referring a matter for compulsory arbitration, to consult with the parties in order to establish the terms of reference. Accordingly, the appellant argues that there was no valid reference to arbitration due to the Labour Officer’s failure to consult the parties on the issues to be referred to arbitration. The appellant alleges that all that occurred was that the parties appeared before the Labour Officer but that there in is no record of the Labour Officer actively consulting with the parties before the formulation of the issues that were referred to arbitration. Reference was made to the case of Cuthbert Elkana Dube v (1) Premier Service Medical Aid Society (2) Premier Service Medical Investments SC-5-22 which emphasized the importance of such consultation. The appellant further argues that the arbitrator ought to have declined jurisdiction on the grounds that the Labour Officer had failed to properly exercise his reference to arbitration.

The respondent argued in the notice of opposition that the Labour officer substantially complied with the requirements of a conciliation process outlined in section 93 of the Labour Act. Contrary to the appellant’s assertion, the respondent contends that there was adequate explanation as to the nature and purpose of the conciliation process. In addition to that, the respondent submits that the conciliation proceedings were conducted in a suitable environment with both unrepresented parties participating willingly and without objection. Throughout the process, the respondent submits that the Labour Officer encouraged a non-adversarial approach however, the appellant’s uncooperative attitude hindered amicable settlement. The respondent further submits that the Labour officer gathered sufficient information to make an informed decision but the appellant’s refusal to provide some details worked to their detriment. Lastly, the respondent contends that there was a thorough analysis of the dispute given that the matter of non-payment of wages was straightforward.

Before addressing the substance of the grounds of appeal, it is crucial to determine whether the appellant’s grounds properly sound in appeal or review. An appeal challenges the merits of a

decision while a review challenges the manner or the process by which the decision was reached. This distinction was clearly articulated in Rock Telecom Limited v Zimbabwe Revenue Authority HH-510-23 where the court held that:

“There is a world of difference between a review and an appeal. The two are not synonymous with each other. In proceedings which are brought on review, the court remains confined to matters of procedure and the rules of natural justice: Mawere v Minister of Justice, 2005 (1) ZLR 65 (H). In an appeal, on the other hand, the court’s concern centers on the court a quo’s misdirections.”

Similarly, the court in Constable Jani 985403P v ZRP Officer in Charge Mamina & Ors HH- 550-15 referred to Herbstein & van Winsen Civil Practice of the Supreme Court of South Africa 4 ed p 932 where the difference between the remedy of appeal and that of review was explained as follows:

“The reason for bringing proceedings under review or appeal is usually the same, to have the judgment set aside. Where the reason for wanting this is that the court came to a wrong conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where, however, the real grievance is against the method of the trial, it is proper to bring the case on review. The first distinction depends, therefore, on whether it is the result only or rather the method of trial which is to be attacked. Naturally, the method of trial will be attacked on review only when the result of the trial is regarded as unsatisfactory as well.”

Despite being framed an error of law, the appellant’s first and second grounds of appeal appear to be grounds of review more than they are of appeal. The grounds make reference to a failure by the Labour Officer to explain the process, hold side meetings and other procedural complaints which properly sound in review, not appeal. A ground purporting to be an error of law must identify a legal principle that the arbitrator misapplied or misunderstood, not merely a procedural dissatisfaction. Accordingly, these grounds fall within the ambit of a review not an appeal.

The relief sought by the appellant is a further indication that the appellant is attacking the procedural irregularities attributed to the Labour Officer. The appellant prays that the arbitration award be merely set aside and does not specify a new or substituted finding. This shows that the appellant is seeking a nullification of the proceedings as opposed to a correction of the legal

conclusion reached. Clarity was sought during hearing from Mr Mugandiwa for the appellant why he framed the grounds of appeal and the relief sought as if they were grounds of review. His response was that the arbitrator’s decision is being attacked for failing to decline jurisdiction. However, a perusal of the proceedings before the arbitrator shows that that was not the argument before the arbitrator. When asked to clarify what would happen to the claim by the respondent if the court were to simply set aside the arbitral award his response was that it would be up to him to decide on the next step to do because the arbitrator would have had jurisdiction had the Labour Officer complied with the provisions of Section 98 of the Labour Act. Such an approach is not consistent with the Act and the need to ensure justice is done between the parties.

In any event, the appellant has not provided any evidence to show the irregularity of the conciliation proceedings. The record before this honourable court does not contain any record or documents relating to the conciliation proceedings. In the absence of such, the court relies on the findings by the arbitrator and the appellate court will not lightly interfere with the findings of the court a quo unless they are grossly unreasonable. This principle was affirmed in Metallon Gold Zimbabwe v Golden Million (Private) Limited SC-12-15.

The arbitrator indicated that a record of the conciliation proceedings was supplied by the Labour Officer and that the parties appeared twice before a certificate of no settlement was issued which shows that conciliation was given time and space. The arbitrator further held that Form L.R 4, the reference to arbitration, was done in the presence of both parties as evidenced by the attendance register. Therefore, the appellant cannot claim that they were not consulted on terms of reference which were crafted in their presence. The arbitrator made a finding of fact that the appellant was represented during conciliation process by its General Manager, one Richard Chimhaka. He further indicated as per record from Labour Officer there was no indication any of the parties raised any concern about how the conciliation was done. The arbitrator also found that the record showed that the parties appeared before the Labour Officer twice, on 21 August 2025 and 11 September 2025. In of the record of proceedings before the Labour Officer the reasoning of the arbitrator cannot be said to be grossly unreasonable as to invite interference in light of the evidence that was before him.

The letter from the appellant dated 21 August 2025 written by appellant’s Managing Director shows that the appellant was not acting in good faith. The parties had appeared before the arbitrator

on the same day and it was strange to purport to write to respondent alleging misconception of his status. It sounds more of fiction than real. It comes as no wonder that a certificate of no settlement was issued because appellant was bringing in new and unrelated issues. I do not see any misdirection by the arbitrator. Appeals are dealt with on record. In the absence of the impugned record of proceedings there is nothing to persuade this court to interfere with the decision of the arbitrator.

In view of the foregoing, I find no merit in respect grounds of appeal 1 and 2.

Whether or not the respondent was an employee of the appellant and therefore entitled to the claim for unpaid salaries.

The appellant submitted that the onus was on the respondent to prove that he was an employee as opposed to a consultant. Relying on the case of Pillay v Krishna 1946 AD 946, the appellant argues that the he who alleges must prove. Therefore, the onus was on the respondent to prove that he was an employee as opposed to a consultant.

On the contrary, the respondent submitted that they adequately discharged their onus on a balance of probabilities while the appellant raised frivolous defence of the respondent transferring into a consultancy.

The general principle is that he who alleges must prove. This principle was restated by the court in Zimbabwe United Passenger Company Limited v Packhorse Services (Pvt) Ltd SC-13-17 as follows:

“The cardinal rule on onus is that a person who claims something from another in a Court of law has to satisfy the Court that he is entitled to it: see Pillay v Krishna 1946 AD 946 at 952–953. It is also settled that he who alleges must prove: see MB Investments (Pvt) Ltd v Oliver & Partners 1974 (3) SA 269 (RA).”

The respondent sought to recover the unpaid salaries for the months of May, June and July and therefore bore the onus of proving that the he was entitled to such unpaid salaries through establishing the employment relationship.

An employee is defined in section 2 of the Labour Act [Chapter 28;01] as “any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in the Act.” The same concept was cemented in section 12(1) of the Act which states as follows:

“Every person who is employed by, or working for, any other person and receiving or entitled to receive any remuneration in respect of such work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

In light of the above provisions, the essential elements of a valid contract of employment are: an agreement to make personal services available, remuneration and subordination. See L. Madhuku Labour Law in Zimbabwe (2015) 31.

Accordingly, the respondent tendered evidence of disciplinary proceedings and subsequent suspension which were instituted against him. Such disciplinary control is typical of an employment relationship. The appellant argued that the respondent could not rely on these proceedings as they were subsequently abandoned after realization that the misconduct procedure only applied to employees and not to consultants. The appellant argued that this was communicated through the letter dated 21 August 2024 and addressed to the respondent. In the letter the appellant stated that there was an oversight on both sides in that the relationship was actually a consultancy rather than one of employment.

However, the appellant’s conduct prior to the letter strongly evidences an employment relationship. The appellant suspended the respondent and instituted proceedings against him and such disciplinary action only arises in an employment context. The letter of suspension dated 31 July 2025 authored by appellant’s Managing Director was not withdrawn and was not disowned. It was tendered as evidence before the arbitrator. The letter was clear that the respondent was being suspended for poor performance of duty among other charges. The suspension was without salary and benefits. That cannot happen to a consultant. If that was case the appellant was simply supposed to terminate the consultancy contract. If any such contract existed the appellant ought to have tendered same before the arbitrator than to rely on word of mouth. It was because of this failure to tender evidence that the arbitrator ruled that appellant had failed to prove existence of consultancy relationship or that respondent was not its employee. The statement was made on the

basis that respondent had tendered documents to prove his side of the story. In short what appellant failed to do was to lead evidence in rebuttal. There is no basis to interfere with the decision of the arbitrator because was no misdirection on a point of law nor can it be said the decision is tainted with gross unreasonableness such that no reasonable tribunal could have arrived at it.

The respondent also tendered evidence to show that he was entitled to a monthly salary of USD$1000, medical aid and tools of trade and was given off days. Such benefits are characteristic of a standard employment relationship rather than a consultancy. Therefore, the employer’s letter purporting to reclassify the relationship as that of a consultancy does not have the effect of altering the true character of the relationship which is one of employment. The claim of mutual oversight is unfounded as there is nothing to indicate that the respondent conceded to that change. The letter itself appears to be an afterthought intended to evade employment obligations and expressing the appellant’s feelings in a bid to resile from the employer/employee relationship.

The substance of the relationship between the parties reveals an employer-employee relationship. Thus, as an employee, the respondent is entitled to the claim for unpaid salaries. Therefore, the third ground of appeal does not have any merit and is bound to fail.

DISPOSITION

Wherefore, it is ordered as follows:

The Appeal be and is hereby dismissed.

There shall be no order as to costs.

Wintertons, Appellant’s Legal Practitioners

Mutatu & Mureri Legal Practitioners, Respondent’s Legal Practitioners

TSIKWA J