Zimbabwe Benefit Foundation v Unknown

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/59/16
HELD AT HARARE ON 11TH MAY, 2015
CASE NO. LC/H/1030/14
AND 5TH FEBRUARY, 2016
JUDGMENT NO. LC/H/59/16
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IN THE LABOUR COURT OF ZIMBABWE  	       JUDGMENT NO. LC/H/59/16

HELD AT HARARE ON 11TH MAY, 2015                  CASE NO. LC/H/1030/14

AND 5TH FEBRUARY, 2016

In the matter between:-

ZIMBABWE BENEFIT FOUNDATION 		-		APPELLANT

The appeal was noted against an arbitral award handed down by the Hon. G. Kwaramba dated 28th October 2014.

The Respondent was employed by the appellant as a Consultant effective 1st March 2009. The consultancy agreement terminated on the 24th of July 2013. The respondent thereafter lodged a claim for unlawful dismissal and non-payment of terminal benefits and salaries. The matter was referred to arbitration in terms of Section 98(6) of the Labour Act [Cap 28:01]. The terms of reference before the Arbitrator were as follows;

To determine whether or not there was unlawful dismissal and non-payment of terminal benefits and salaries.

Determine the appropriate remedy.

The respondent before the Arbitrator claimed that he had been employed as a consultant earning a salary of $382.764 plus $186.85. The appellant had abruptly terminated his contract in 2013 without conducting a hearing or giving him notice. The appellant reneged on payment of $811.00 per month as agreed as well as mileage at 0.80c per km. The respondent was claiming in relief that he be paid salaries for four and half years, leave days, mileage as per agreement and damages for loss of employment.

The appellant submissions before the Arbitrator were that the claim for $21 600.00 by respondent was unjustified as respondent was engaged on the basis of a consultancy agreement to oversee appellant’s projects in Zimbabwe. Appellant was paid a daily fee for any work undertaken. The respondent also appeared to be making inconsistent claims against the appellant. The appellant submitted that the respondent (on the basis of record of payments) was paid out his wages as well as the mileage expenses. The appellant denied assertions by respondent that it was a political activist engaged in clandestine operations. It denied engaging respondent in any position acting on behalf of itself. The respondent consultancy was terminated when he decided to stand in the elections as a candidate. The appellant denied the suggestion that respondent was a full time employee instead of a Consultant. The appellant prayed that the Arbitrator dismiss all the claims.

The Arbitrator after analysing arguments and considering the evidence submitted before him found that the parties had entered into consultancy agreement which specifically indicated that the nature of relationship was that of an employer/employee. In regards the claim for non-payment of terminal benefits and salaries the Arbitrator found that on the basis of the consultancy agreement Respondent was supposed to be paid $20 working day and be reimbursed all reasonable expenses incurred by him including fuel and usage of personal car. The Arbitrator concluded that it was unreasonable for the respondent to have worked for 4 and half years without being remunerated.

The Arbitrator thereafter shifted the onus onto the appellant to prove that it had paid the amounts claimed by the respondent. In the absence of proof the Arbitrator thereafter found that the appellant had failed to discharge the onus on it to prove that it paid respondent. The Arbitrator then directed the appellant to pay a grand total of US$17 605.50 which covered the salary/allowance for a period of 2 ½ years. He justified the period on the basis that the tribunal is there to advance fairness between the parties. The appellant was directed to implement the award within 21 days of receipt of the award.

The appellant was aggrieved and noted an appeal against the award. The grounds of appeal are however lengthy and cumbersome. The respondent in an equally lengthy and cumbersome Notice of Response insisted that he was engaged on a full time basis and that he was therefore entitled to the claims as submitted as he had not been paid as per the consultancy agreement. He prayed for the Court to uphold the arbitral award.

On the date of hearing the respondent having now engaged a Legal Practitioner took a point in limine that the Grounds of Appeal did not raise questions of law and therefore the appeal was improperly before the Court. It is clear from a perusal of the appellant’s Grounds of Appeal that the appellant is alleging gross misdirection on the facts. Appellant alleges that the findings on the facts are so outrageous in that defiance of logic that no reasonable person who had applied his or her mind to the question would have arrived at such a finding. To the extent that the appellant raises this point I believe the appeal is properly before the Court. It is after all trite that a serious misdirection on the facts can be taken to be a misdirection in law thus raising a ‘question of law’. See in this respect Hama vs. National Railways of Zimbabwe 1996 (1) ZLR 64 (S) and Mutsuta & Anor. vs Cagar (Pvt) Ltd. 2009 (2) ZLR 327 (S).

The Arbitrator in this case clearly misdirected himself in law and on the facts. The respondent before the Arbitrator alleged that he had been engaged on a full time basis earning $20 per day. He was therefore claiming 4.5 years salary as if he had not been paid at all during the tenure of the consultancy agreement. The Arbitrator correctly came to the conclusion that it was inconceivable that someone could have worked for 4.5 years without being paid. The Arbitrator however in an unusual twist then turned around and made an irrational finding that appellant would not pay for 4.5 years but should pay for 2.5 years. There was clearly no basis for having reached the figure of 2.5 years. No evidence had been placed before him to substantiate the award of wages for 2.5 years. If he rejected the claim for 4.5 years there was equally no basis for him arriving at 2.5 years. He merely “thumb-sucked’ the period of 2.5 years a practice which the Supreme Court has clearly castigated in many decisions. See for example Redstar Wholesalers vs. Edmore Mabika SC 52/1995 where ZIYAMBI J stated as follows;

In regards the claim by the respondent that he was engaged on a full-time basis there was in my view overwhelming evidence to show that respondent was engaged as a consultant. There was the consultancy agreement itself as well as the evidence tendered in the form of invoices which showed that respondent was engaged as a consultant. If he was engaged on a fixed salary of $20.00 per day there would have been no need to continually raise invoices. The employee would instead be paid a flat fee based on the number of days worked per month. Clearly the only reason respondent needed to raise the invoices was according to the agreement he would only be paid $20 for the actual days worked. He would also be reimbursed for expenses incurred as per the consultancy agreement produced before the Arbitrator. The Arbitrator clearly erred in reaching his conclusions and awarding payment of the claims.

The Arbitrator ought to have also considered that at no time during the 4.5 years had the respondent lodged a claim either to the appellant or the Department of Labour for non-payment of his wages and allowances. The only time the respondent referred such a claim was after being notified of the termination of the consultancy agreement on the basis that he had decided to serve as a political candidate in the elections. Even though this point was raised by the appellant in its ground of appeal before this Court the respondent failed to tender any reasons for the failure to file a complaint.

The appellant also raised the issue of the unreliable claims made at different stage by the respondent. The respondent had initially claimed he was owed $811 per month at some stage. By the time the matter went for arbitration the claim had gone up to $21 600.00 with further claims for internet expense. The amount further ballooned to $58 802.00 during an attempted out of court settlement process.  In the face of such inconsistent claims the Arbitrator clearly ought to have found the claims were unjustified. Before this court the respondent has not attempted to explain the inconsistent claims.   The Arbitrator’s findings against this background were clearly baseless. By granting an award of salaries/benefits to cover a period of 2.5 years without having heard any evidence to substantiate that period the Arbitrator clearly misdirected himself. He committed a gross misdirection on the facts as to amount to a misdirection in law. His award clearly cannot be allowed to stand.

In the result I hand down an order in the following terms;

The appeal be and is hereby allowed with costs.

The arbitral award handed down on 28th October 2014 is hereby set aside.

G. Makings – appellant’s legal practitioners

Muhonde Attorneys – respondent’s legal practitioners