Drive International v S.L.M Mpofu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO.LC/H/634/14
HARARE, 23RD JULY, 2014 CASE NO LC/H/292/14
And 26th SEPTEMBER, 2014
JUDGMENT NO. LC/H/634/14
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO.LC/H/634/14

HARARE, 23RD JULY, 2014				CASE NO LC/H/292/14

And 26th SEPTEMBER, 2014

In the matter between:

DRIVE INTERNATIONAL

Vs

S.L.M MPOFU

Before the Honourable B.T. Chivizhe: Judge

For Appellant: Mr E. Jera (Legal Practitioner)

Mr S.L.M Mpofu – In Person

CHIVIZHE, J.

This is an appeal against an arbitral award handed down in favour of the Respondent on the 13th of March, 2014 the operative part of which directed the Appellant to pay the Respondent arrear salaries covering the period January 2013 to April 2013.

The material background facts to the matter are as follows; the Respondent was employed as a sales representative by Appellant. He was initially hired on a commission basis; a contract of employment was allegedly later signed between Respondent and one Jonathan Dube a farmer employee of the Appellant currently serving a jail term for defrauding the Appellant.

After the arrest and subsequently incarceration of Jonathan Dube the Respondent instituted proceedings claiming payment of ‘arrear salaries and unfair dismissal’. He based his claim on an employment contract purportedly signed between him and Jonathan Dube on behalf of the Appellant. The Appellant disputes the authenticity of the said contract. The matter went for conciliation and subsequently to arbitration.

The terms of reference for the Arbitration were to determine;

Whether or not the claimant’s contract of employment is valid.

Whether or not the 3.8% commission was agreed upon by the employer and employee.

Whether or not the claimant was unfairly dismissed.

To determine the appropriate remedy.

The Arbitrator after considering the facts and evidence concluded that the contract of employment was a valid document; that the issue of 3.8% commission was not agreed upon between the Appellant and Respondent; finally that the Respondent was not unfairly dismissed. The Arbitrator further found that by virtue of the valid contract of employment presented before her the Appellant owed the Respondent arrear salaries for the period from January 2013 to April 2013. The Arbitrator then granted an award in the terms as referred to supra.

The Appellant was aggrieved by the decision. It noted an appeal on the following grounds of appeal.

The arbitrator erred at law in finding that the Respondent had a valid contract of employment notwithstanding clear evidence that the contract document did not originate from the Appellant and was strikingly dissimilar to all other Appellants official documents.

The Arbitrator also erred at law in finding that the Respondent was a bona-fide employee notwithstanding the existence of facts on the contract document itself and based on the Respondent’s conduct which showed that there was collusion between Respondent and Jonathan Dube in defrauding the Appellant.

There are two issues raised for determination before this court. The first is whether the Arbitrator erred at law when he found that the purported contract of employment between Appellant and Respondent was a valid contract of employment. The second issue is whether the Arbitrator erred in finding the Respondent was bona fide employee of the Appellant in the light of evidence availed.

I turn to address the issues.

The Arbitrator in her award found that the contract of employment between the parties was a valid contract. The Appellant position is that Dube has no mandate to enter into a permanent employment contract with the Respondent. The Respondent status had always been of employment on commission basis. The Arbitrator therefore erred in reaching that conclusion in light of the evidence before him.

The Respondent’s position is the Arbitrator was correct in her analysis of the facts and evidence and reached the correct conclusion that there was a valid contract between the parties.

It appears common cause the Respondent was initially engaged on a commission basis through a verbal agreement. This much is evidenced by the e-mail written by Jonathan Dube to the Appellant’s Manager Director.

The main issue raised however is based on the authenticity of the permanent contract of employment presumably entered into between the Appellant as represented by Jonathan Dube and Respondent. The Arbitrator in her award found that Jonathan Dube had the capacity in the company to negotiate the terms and conditions of employment on behalf of the Appellant. The Arbitrator concluded that Jonathan Dube had, acting in his representative capacity, drawn up and signed the contract of employment on Appellant’s behalf. The Arbitrator however in her findings noted the anomalies in the contract document (which anomalies Appellant had raised), that included, the striking difference between the Appellant’s letterhead on the purported contract of employment and other company documents, the missing names of the signatories in the documents and their capacity to do so. The wording of the contract was also clearly suggesting that the Respondent was continuing in employment whereas the correct position was that the Respondent was being employed for the first time. Whilst noting the anomalies and inconsistencies in the wording of the contract of employment the Arbitrator however concluded that “the claimant (Respondent) was not the author of the document and in my view he then cannot be crucified for incorrect phrasing of wording of statements.”

The Arbitrator’s finding is in my view manifestly unreasonable. It is trite that a contract of employment creates the relationship between the employer and employee. It is inconceivable that the parties could have ended up signing a contract fraught with so many errors and inconsistencies. The Appellant having clearly raised before the Arbitrator that Jonathan Dube had access to the company official documents it is baffling as to how Jonathan Dube could have recorded the purported contract of employment on documents that were not official documents.

The Arbitrator ought to have also viewed critically the fact that it was only after Jonathan Dube’s conviction and penalty that the Respondent had initiated in October, 2013 a claim for arrear salary’s/benefits. The Respondent had then produced the purported ‘contract of employment’. Given that the Respondent had presumably worked from January to April 2013 without receiving a salary it was clearly unreasonable for him to then claim his salary in October, 2013. It begs the question as to why the Respondent would have only pestered Dube for his salaries; why he did not during that period approach senior management with his claim if it was genuine; he could not have worked for that period without being paid and fail to raise any grievance if he was genuinely a permanent employee. The Arbitrator’s finding was clearly outrageous in its defiance of logic and ought to be interfered with. His award deserves to be set aside and substituted with an order dismissing the claim by the Respondent.

It is accordingly ordered as follows;

The appeal be and is hereby allowed.

The arbitral award handed down on the 13th of March, 2014 be and is hereby set aside and substituted with the following;

“The claim be and is hereby dismissed with no order as to costs.”

Moyo and Partners – Appellant’s legal practitioners