Ameva Secondary School v Edwin Fransiku & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/546/2016
HARARE, 18 JULY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/546/2016

HARARE, 18 JULY 2016  	  		         	   CASE NO. LC/H/1122/15

AND  9 SEPTEMBER 2016

In the matter between:-

AMEVA SECONDARY SCHOOL				Appellant

And

EDWIN FRANSIKU					1st Respondent

And

PIENEL MAZVIYO						2nd Respondent

Before Honourable P. Muzofa, Judge

For Appellant		Z Makorie (Legal Practitioner)

Respondents		In person

MUZOFA, J:

This is an appeal from an arbitral award made in favour of the respondents.

The respondents are former employees of the appellant.  The borne of contention is the classification of the appellant as to which National Employment Council (NEC) it belongs for a proper determination of the respondents grades and salaries.

The respondents’ contracts of employment were terminated in March 2015.  A dispute ensued as to whether the termination was lawful.  The parties eventually settled the matter before a conciliator.  The respondents’ terminal benefits were paid.

Later in May 2015 the respondents referred a complaint to a Labour Officer of underpayment of wages and non-provision of safety clothing.

When conciliation failed the matter was referred to an arbitrator.  The arbitrator’s terms of reference were to determine the correct industry in which the employees fell and to determine if there were underpayments.

The arbitrator determined that the respondents were under NEC for the Welfare and Education Institutions, instead of the NEC Agriculture.  The effect of that decision was that there were underpayments.

The appellant then appealed to this court.  Two grounds of appeal are set out, which raise two issues for determination.  Firstly whether the arbitrator erred in finding that the appellant and respondents fell within the NEC Welfare and Education Institutions.  Secondly whether the respondents were owed arrear salaries.

In my view a determination on the first ground of appeal impacts on the second ground of appeal.

According to the appellant an entity called Christian Fellowship (CF) a charitable organisation and non profit making does many of its community development programmes on a farm known as Ameva Farm.  Ameva Farm is involved in agricultural activities.  In order to assist its community it formed a school, being the appellant in this case.

The employees at Ameva Farm and appellant were all contributing to the NEC for the Agricultural Industry.  The appellant further submitted that a letter from the Ministry of Primary and Secondary Education was produced before the arbitrator.

The said letter dated 20 April 2014 classified all the employees at appellant under the Agricultural Collective Bargaining Agreement.  In addition the contracts of employment was between the respondents and Ameva Farm CMC and CF Trust (Amev.a Secondary School). The contract also included a term that the employees’ salaries would be reviewed in terms of what was referred to as the agricultural labour bureau.

Therefore the respondents’ salaries should be graded in terms of the NEC for agriculture.

Respondents disputed the classification as set out by the appellant.

The respondents submitted that appellant is owned by two religious organisations the Christian Marching Church (CMC) and Christian Fellowship.  Further to that it was submitted that the school was an ancillary activity not associated with farming activities.  A receipt was produced which showed that the appellant charged school fees and  levies.

A copy of the contract entered between the appellant and respondents was produced.  The employer party is cited therein as Ameva Farm CMC and CF Trust (Ameva Secondary School).

The determination for this court to make is whether the school activities were related to the appellant’s undertaking of farming.

In R v Sidersky 1928 TPD 109, the court held that the character of the trade or industry is determined, not by the kind of occupation in which the employees in that trade or industry are engaged, but by the nature of the enterprise in which the employers and employees are engaged for a common purpose.  Once its character is decided all the employees are engaged in that trade or industry, whatever the actual work may be which the employer allots to them.  In that case the employer a chemical manufacturer, was found not to be engaged in the building industry by reason of his employment of two bricklayers in certain building operations on his premises.

In the case of R v Rohold 1934 TPD 371 the court applied the test in R v Sidersky (supra).  The employee in that case worked solely on cutting wood which was required by persons for making furniture.  The court held that the employer who carried on a saw milling business in which wood was cut was not an employer in the furniture industry.

The court had this to say at page 374 “the test is not the kind of work that is done by an employee; the test to find out what the industry is, is to consider what is the collective enterprise in which the employer and employee are associated.”

The same test was applied in our jurisdiction in the case of Border Timbers (Pvt) Ltd v Minister of Higher Education 2000 (2) ZLR 77 (SC). In that case the respondent levied a certain amount to be paid by appellant which levies were payable by companies in non agricultural undertaking or production.  Appellant was in the business of timber production on a forestry estate operated by it.

Its activities included planting, cultivation, felling and conveyance of mature tree trunks to the forest mill on the estate for debarking.

It was argued that those employees involved in the rough saw milling of the timber logs were not involved in an agricultural undertaking, and that saw milling is an industrial and not an agricultural activity.

The court applied the common enterprise test and concluded that the saw milling was an integral part of the general forestry farming of timber logs.

The question then to be asked in this case is: in which enterprise were the appellant and the respondent associated for a common purpose to provide education.

In my view the appellant therefore cannot be classified under NEC for Agriculture.  The farm and the farming activities are completely different from the educational activities.

The inquiry should not end there because the appellant is owned by a farm.

The inquiry should canvass whether the school, appellant, was incidental or an integral part of the farming operations?

This case I must admit is different from the cited cases.  The issue is not an individual employee but the employer.  In casu it is not indispute that appellant is a school.  It is also not in dispute that the school is partly owned by a farming enterprise.

It is my view that the responsible authority that is the Ministry of Primary and Secondary Education considering the circumstances of appellant, classified it as an activity incidental or an integral part of the farming enterprise.

By letter dated 20 April 2014 the Ministry wrote the following letter.

“The Ministry of Primary and Secondary Education understands that Ameva Secondary School is a farm based school established by the farm owner so that it can provide an education to the poor farming community.  The Government shall provide teachers who are paid by Government. …

The Ministry shall expect the farmer to also provide security workers to the school …

Since the farmer generates income from Agricultural activities, it is acceptable to have the Agricultural Collective Bargaining Agreement Instrument used on all workers which are attached to the school by the farmer.  The workers would need to be made aware of these conditions of service on joining the school.

The school is allowed to operate in this way because we understand the level of income farm workers get (sic) cannot allow the school to charge high levies.”

The contents of this letter were not disputed or even its authenticity was not questioned.  To that extent, even if appellant and respondents were associated by common purpose to provide education, the Ministry having considered the purpose and circumstances of appellant made it a part of the farming activities.

I say this because appellant was given conditions not to charge high levies.  It was not established to be an income generating educational school, but to provide a service to the farming community.

The inescapable conclusion would then be that the workers should be classified under NEC Agriculture.

The arbitrator did not give considerable weight to the letter from the Ministry.  The inquiry as to the dominant function by the arbitrator was appropriate.  However the exclusion of the letter led to an incorrect conclusion.

The first ground of appeal succeeds.  The determination invariably impacts on the second of appeal.  The respondents were properly graded and paid in terms of the NEC Agriculture.  Their contracts were also clear that salary reviews were to be made in terms of the Agriculture Labour Bureau, which I suppose referred to rates applicable in the agricultural sector.

Accordingly the following order is made.

The appeal be and is hereby upheld.

The arbitral award is hereby set aside and replaced by the following.

“a. The claimants are hereby graded under NEC Agriculture.

b. The claimants’ claim is dismissed.”

3. No order as to costs.

Coghlan, Welsh & Guest, appellant’s legal practitioner