Dr Mhishi's Rooms v UNKNOWN

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/38/16
HELD AT HARARE ON 12 JANUARY 2016
CASE NO.
JUDGMENT NO. LC/H/38/2016
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IN THE LABOUR COURT OF ZIMBABWE  	       JUDGMENT NO. LC/H/38/16

HELD AT HARARE ON 12 JANUARY 2016                  CASE NO. LC/H/797/15

AND 22ND JANUARY, 2016

In the matter between:-

DR MHISHI’S ROOMS				-		APPELLANT

The matter was placed before me as application for review and an appeal against an arbitral award handed down by Honourable B. Chikwana on the 22nd July 2015. On the date of hearing the court raised a point mero-motu. Although the point was not specifically pleaded to by the parties, it is a point of law which the court was entitled to raise as the point goes to the validity of proceedings before the court.  The point pertains to the capacity of the Applicant/Appellant to appear before the Court.

It was clear from a perusal of the record of proceedings before the Arbitrator that the issue had been previously raised before the Arbitrator. The claimant before the Arbitrator had cited the Respondent as Dr Mhishi. Dr Mhishi then objected to being cited in his personal capacity. The claimant then conceded to the point that she was indeed employed by Doctor Mhishi’s Room and not Dr Mhishi in his personal capacity. Having made that concession the Arbitrator appears to have abstained from further addressing the point. His award was however issued with the Respondent party cited to as ‘Dr Mhishi’s Room’ implying that the Arbitrator had upheld the objection in favour of the Respondent before him.

The court invited the parties to make submission on the point. The Appellant submitted that it was properly before the court as ‘Dr Mhishi’s Room’ is the registered name of the practice under the Health Professions Act [Cap 27:19]. Appellant undertook to furnish the court with the proof of registration. It was Appellant further submissions as Respondent was employed at the rooms the Appellant had been properly cited before the court. The Respondent counsel had no submission to make on the point.

The Arbitrator however in my view clearly erred in a material respect. The issue as to who is before the court/tribunal is crucial. This is because the Labour Act [Cap 28:01] and its regulations are underpinned on the existence of an employment relationship. In other words in any action/matter before the court/tribunal there must be an employer and an employee. The duties and rights of employers and employee only arise if there exists an employment relationship.

The three essential elements of a contract of employment are (1) agreement to render personal service (2) remuneration (3) subordination. See Labour Law in Zimbabwe: Lovemore Madhuku, 2015.

Section 12 (1) of the Labour Act [Cap 28:01] clearly provides for the first. Section 12 (1) reads;

“1. 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.”

It is clear that whether there was a written contract or not in this case Respondent is deemed to have been employed by Dr Mhishi as he was responsible for her remuneration.

It is not possible that she could be said to have been remunerated by the rooms. Dr Mhishi from the record was also responsible for allocating her duties. She as an employee on the other hand had a duty to subordinate herself to him. Clearly therefore her employer was Dr Mhishi and not his rooms.

Secondly the ‘Dr Mhishi’s Rooms cannot be regarded as a legal persona. The Appellant after the proceedings filed in proof of legal capacity a Medical Practice certificate issued in terms of Health Professions Act [Cap 27:19] which reflects the practice name as ‘Dr Mhishi’s rooms’. The certificate of registration is in my view irrelevant to the matter. It only shows that the practice is registered for purpose of the Health Professions Act [Cap 27:19]. That would not however clothe the purported Applicant with legal capacity to appear before the court as an employer.

The court is satisfied that the purported Applicant/Appellant not being a legal persona the application for review and appeal are improperly before this court. There is consequently no Applicant/Appellant before the court. The application for review and the appeal are accordingly struck off with costs.

Madzivanzira & Associates, appellant’s legal practitioners

Tawanda Law Practice, respondent’s legal practitioners