Cafca Limited V Isaac VUTA

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/662/2016
HARARE, 28 SEPTEMBER 2016 &
CASE NO LC/H/1022/2015
21 OCTOBER 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/662/2016

HARARE, 28 SEPTEMBER 2016 &			CASE NO LC/H/1022/2015

21 OCTOBER 2016

In the matter between

CAFCA LIMITED							APPELLANT

Versus

ISAAC VUTA							RESPONDENT

Before the Honourable Murasi J

For the Appellant	Advocate R. Mabwe

For the Respondent	Mr. L. Seremani (Legal Practitioner

MURASI J:

The parties appeared before me on 21 July 2016 and requested to compile the record and make supplementary submissions. The Court accordingly issued timelines within which the filing of documents was to be concluded. After both parties had filed the documents, they indicated that the Court could proceed to make a determination on the basis of the documents filed of record. The Court will thus proceed on that basis.

The brief facts of the matter are that respondent was allegedly employed by the appellant. Respondent alleged that he was informed by the appellant to stop reporting for duty. Respondent claimed that this was unlawful termination of the employment contract. The matter ended up in arbitration and the arbitrator found in favour of the respondent. Appellant is dissatisfied with this ruling and has approached this Court for relief.

The appellant’s grounds of appeal are couched as follows:

a)	The arbitrator erred at law in finding that there was an employer/employee relationship between the appellant and the respondent.

b) 	The arbitrator misdirected himself on a finding of fact which misdirection resulted in him arriving at a wrong conclusion of the law when he found that the respondent did not resign against evidence to that effect.

c)	 The arbitrator erred at law in finding that the appellant had an obligation to conduct a hearing for the respondent when the respondent had stopped reporting for duty.

In the supplementary heads of argument filed, Advocate Mabwe submitted that documentary evidence clearly showed that respondent was not employed by the appellant but by Tamwill Private Limited. It was further submitted that respondent was an undercover employee who was not subject to the disciplinary authority of the appellant. Advocate Mabwe argued that despite the absence of an employer/employee relationship between appellant and respondent, there was also documentary evidence to show that respondent had resigned from employment and thus could not allege that he had been dismissed from employment. It was further argued that in view of the existence of these glaring facts, the arbitrator could not have found otherwise. It was further submitted that the arbitrator was wrong in arriving at the decision that he did when the evidence available pointed in another direction.

Mr Seremani, for the respondent, relied on the contract that was signed with the appellant especially the fact that respondent was appointed to the grade of Order Processor (Grade B). It was alleged that respondent was blocked from entering appellant’s premises on 31 May 2013 when his contract with appellant was subsisting. It was argued that there was therefore an employer/employee relationship between the appellant and the respondent. Mr Seremani further submitted that appellant had not complied with the provisions of the Labour Act when it purportedly terminated respondent’s employment contract.

Precedent has shown that an appellate court will only interfer with the decision of a lower court or tribunal where there is evidence of a misdirection. (See generally Chioza v Siziba S-4-15) It is therefore pertinent that a look be had at the determination made by the arbitrator. The appellant takes issue with the finding of the arbitrator that there was an employer/employee relationship between the two litigants. The arbitrator makes the following finding:

“However the Respondent argues that he was an undercover agent who had a contract of employment with Tamwill (Pvt) Ltd. I will not rule out that submission because it is very possible for such kind of thing to happen but I would however be convinced only when I saw the contract of employment that was signed by Isaac Vuta and Tamwill stating clearly the conditions which the Complainant was going to operate under…The only contract of employment that was produced was between I. Vuta and Cafca….This left me convinced that he was an employee of Cafca. The letter written by M. Milton dated 26/2/2015 clearly indicates that Isaac Vuta could not perform up to standard that is why his employment contract had to be recalled by Tamwill (Pvt) Ltd and he was told to resign from Cafca but he stopped reporting for duty after being told that.”

This passage shows that the arbitrator swings from one end of the evidence to the other. The arbitrator’s position initially was that he would only be convinced if evidence is produced that respondent was not employed by the appellant. He makes an admission that the scenario narrated by the appellant is possible.

The arbitrator is also aware of the existence of a letter of resignation and a Pension Withdrawal Form completed by the respondent indicating that he was withdrawing his pension consequent to his resignation. The passage quoted above also shows that there was a letter which was brought to the attention of the arbitrator. This letter advised that respondent was not performing his duties up to the required standards and was thus informed that he was being ‘withdrawn’ from appellant’s work station and he was supposed to tender his ‘resignation’ to appellant. The record also shows an agreement entered into between appellant, respondent and Tamwill regarding the nature of the employment relationship between the appellant and the respondent. Having regard to the above cited pieces of evidence, was the arbitrator entitled to arrive at the decision that there was an employer/employee relationship between the parties? I am of the view that the evidence in the record does not lead to that conclusion. I associate myself with the sentiments of GILLESPIE J in S v Jojo Mbiri HH-239-98 where he had this to say:

“In my estimation this is a classic example of the court massaging the evidence in order to have it fit a pre-conception. That is not the way to do things. It should scarcely need saying that one must examine the evidence first and see what it proves rather than arriving at a pre-conception first, and see whether it can, no matter how, be supported.”

There was evidence of a resignation letter and the Pension Withdrawal Form. That evidence in itself would have shown that there was no unlawful termination of the employment contract. However, apart from the ipse dixit of the appellant, there was a letter from Tamwill stating that respondent was supposed to ‘resign’ from the appellant’s employ as he was being ‘recalled’. This would surely show that the appellant was not respondent’s ‘employer’. It is therefore my view that the arbitrator clearly erred when he made the finding that there was an employer/employee relationship between the parties. It would be unjust and inequitable to hold otherwise.

In light of the finding in the first ground of appeal that there was no employer/employee relationship between the parties, it is thus not necessary to consider the other grounds of appeal. The appeal ought to succeed.

In the result the court makes the following order:

1. 	The appeal, being with merit, is allowed,

2.  	The arbitral award of Honourable Tanyanyiwa dated 29 October 2015 be and is hereby set aside.

3. 	 Each party to meet its own costs.

Coghlan, Welsh & Guest, appellant’s legal practitioners

J Mambara & Partners, respondent’s legal practitioners