C. Kunganya v Arcadia Islamic Society

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/461/16
HELD AT HARARE 17 NOVEMBER 2015
CASE NO
JUDGMENT NO LC/H/461/16
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IN THELABOUR COURT OF ZIMBABWE 			JUDGMENT NO LC/H/461/16

HELD AT HARARE 17 NOVEMBER 2015			CASE NO LC/H/REV/152/15

& 22 JULY, 2016

In the matter between:

C. KUNGANYA 			Applicant

Vs

ARCADIA ISLAMIC SOCIETY		Respondent

Before The Honourable Chivizhe, J

For Applicant		Miss P. Makurunure (Legal practitioner)

For Respondent 	Miss N. Mangidza (Legal practitioner)

CHIVIZHE J;

The matter was placed before me as an application for review. The application was opposed.

Background facts

The Applicant submitted that he was employed by the Respondent as a supervisor and Imam of the Arcadian Islamic Society (Respondent) from the 1st of September 1989 up to the 28th of January 2015. This point was however disputed by the Respondent. It was Respondent’s counter submission that Appellant was not an employee instead he was only offering his services as per the Respondents religion and under the terms of the Koran. The issue shall be addressed in more detail below.

On the 28th of January 2015 the Respondent Chairman wrote a memo to the Appellant entitled, ‘mutual termination agreement’. The Appellant however refused to sign the memo on the basis that there was no consensus between the parties and therefore there was no mutual agreement as proposed by the Respondent. Subsequent to that Respondent delivered to Applicant a letter on the 19thApril 2015 which letter however was dated 28 January 2015. In the dated letter the Respondent gave the Appellant 3 months’ notice of the termination of his service. The reason tendered was that the Respondent being a donor based organisation was now failing to meet its operational requirements, hence a need to reduce its wage bill. The letter further advised that Respondent was tendering Appellant a package consisting of 3 months’ salary and gratuity which package amounted to $5000.00 in total. The Appellant was also given 3 months’ notice to vacate his accommodation at the Respondent’s premises.

On the 27th of April 2015 the Appellant was served with yet another letter entitled “Termination of contract on 3months notice,” In the letter Applicant was being requested to meet the Respondent’s Committee with his representatives within seven days failing which the Respondent would infer that Applicant had accepted the conditions as previously tendered. The Respondent would in the circumstances proceed on the basis of the package so offered. The record shows that no response came from the Appellant. The Appellant instead approached this court, with the present application.

GROUNDS FOR REVIEW

The Appellant is seeking to impugn the decision taken by the Respondent Committee on the basis of the following grounds;

The Respondents decision and notice to retrench Appellant was irregular and contrary to the provisions of the law as the retrenchment provisions under retrenchment regulations were not followed

The process of retrenchment was flawed

The appellant was not attended the right to be heard.

The package offered by the Respondent is grossly unfair and defective.

The Respondents board that purported to retrench the Appellant had an illegal term of office hence the termination of the Appellant employment is null and void.

The application for review was opposed by Respondent on the basis of the following points; that the Applicant was not retrenched, he was never employed by the Respondent;  instead he was only offering his services as per Respondents religion and in terms of the Koran; there was clearly no basis for pursuing retrenchment procedures; the Applicant was offered a chance to be heard by the board; he was offered a package as a token of appreciation and the package was fair and reasonable in the circumstances; the Respondent Board that issued the resolution that the Appellant’s services were no longer required was legally in office at the material time;  that there had been an amendment to the constitution by virtue of a resolution drawn by the previous board addressing the terms of office of the sitting board.

Evaluation and analysis

It would appear the first issue that the court must address is whether or not an employment relationship existed between the parties. The Applicant submission was that he was an employee. Although there was no written contract the relationship between the parties was however in keeping with the definition in the Labour Act [Cap 28:01]. He was providing a service as an Imam and was being remunerated for the services rendered. The Respondent as the employer had the obligation to reduce the agreement into writing. It was Appellant’s further submission that his position was supported through the letters referred to supra in which the Respondent referred to terms such as ‘wage bill salary’ ‘lest working day’ etc.

The Respondent’s submission was that the Appellant was never employed or engaged as a supervisor or an Imam. He was only rendering services to the Islam Community as the Imam (preacher) at the Islamic Arcadia Community church since 1993. As per the church policy an Imam is not entitled to a salary as the services he will be offering are taken to be for Allah. The community at its own discretion decided to award Appellant an amount as a token of appreciation for the services he was rendering and not a salary. The community also then agreed that whoever will be serving as an Imam will also have the privilege of staying in the house at the church premises. The Respondent denied that the parties ever entered into a contract of employment either written or unwritten. The Respondent put the Appellant to the proof as to when and how he was employed. The Respondent disputed that the inclusion of the terms ‘wage bill’ ‘salary’ in a letter otherwise written by lay persons would create a contract of employment. For an employment relationship to exist there must be a clear and unequivocal offer and acceptance which was not the case in casu. Respondent referred to case of authorities on this point. The Applicant had also failed to produce any evidence to prove his duties assigned in the purported post. The Appellant also failed to indicate who he reported to in the organisational structure.

The Labour Act [Cap 28:01] defines in Section 2 an ‘employee’ as any person who performs work and 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 courts have over years developed tests that can be applied to determine whether an employment relationship exists. Although several tests have been developed the ‘multiple or dominant impression test’ seems to be the one test’ that courts have consistently applied. See for instance the case of Southampton Assurance Company of Zimbabwe vs Mutema and Anor. 1990(1) ZLR 12. There are on the basis of precedence several essential elements that can constitute a contract of employment i.e.

Agreement to make personal services available

Remuneration

Subordination

See also Madhuku in Labour Law in Zimbabwe, 2015 Edition.

With regards to the first element an agreement to make personal services available this is governed by ordinary principles of the law of contract.  There must be an alter and an acceptance. There is however no requirement for the contract to be reduced into writing. Section 12 (1) of the Labour Act [Cap 28:01] in this regard states as follows;

“12 Duration, particulars and termination of employment contract

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

Whilst it is clear that there is no requirement for the contract to be reduced in writing a party however alleging that there was a contract of employment ought to be able to establish the elements of the contract, what was the job title , what were the duties of the job, who was he required to report to at each given time, what were the official hours, what was the remuneration rate, was it weekly /monthly , what other benefits was he entitled to, was he entitled to leave , when and how, etc.

When one has regard to the facts in casu it is clear that apart from the Applicant mere say that he was an employee the Applicant failed dismally to place before this court any evidence to prove the existence of an employment relationship. The Applicant failed for an example to show, what his duties were as a Supervisor and Imam, who was he supervising and who in turn was he reporting to on his duties on the basis of the organisational structure. The Applicant ought to have also established that he was being remunerated regularly for the services rendered. He would have tendered evidence in the form of salary slips at least. There are also statutory regulations that the employer ought to have been meeting e.g. NSSA, medical aid, etc. Applicant would have produced such evidence as to prove Respondent was indeed his employer. In the absence of such evidence the court can only infer that the monthly payments made to him were allowances paid out to him as a token of appreciation for the services rendered to the church. The allowances were not a salary or remuneration as envisaged under the Labour Act [Cap 28:01].

The Applicant also submitted that on the basis of the letters written to him by the Respondent representatives where mention is made of ,’wage bill’ , ‘salary’ , ‘employment’ and ’last  working day,” the court must find that there indeed was an employment relationship between the parties. The Respondent counter - argued that the letters were authored by persons who are otherwise lay persons and who are therefore not conversant with the law. I am persuaded to accept the argument by the Respondent. It is also the court’s view that the onus to prove that he was an employee clearly lay on the Applicant. The Applicant was expected to prove this allegation on a balance of probabilities. The position is after all settled in our law that in civil proceedings a party who makes a positive allegation bears the onus to prove such an allegation. This position was settled in the case of Book vs  Davidson 1988 (1)ZLR 365(S) as 384 where Dumbutshena CJ  (as he then was)   quoted with approval the  word of Portgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd  1965 (2) SA 706 AD as 7!!E – G. ‘The general principle governing the determination of the incidence of onus is the one quoted in the ‘’carpus luns simper necensuas probandiincumbitille qui agit’’.  In other words he who seeks a remedy must prove the grounds therefore. (Emphasis added by underlining.’

In casu it was simply not enough for Applicant to rely on the letters referred to justify his claim that he was an employee. He should have at least produced other evidence even in the absence of actual contract of employment. He thus failed to discharge the onus on him to prove that he was an employee as contemplated by the Labour Act [Cap 28:01]. The facts and circumstances unstated point to the fact that Applicant was engaged as an office – holder. His dismissal would in the circumstances follow procedures under the organisation’s constitution or under public law. His recourse would in the circumstances lie elsewhere.

Conclusion

Having reached the conclusion that Applicant was not an employee as contemplated under the Labour Act [Cap 28:01] it follows that the decision taken by the Board is not reviewable before the Labour Court.

Order

The application for review is dismissed with costs.

Makuku Law Firm, applicant’s legal practitioners

T K Hove & Partners, respondent’s legal practitioners