Innscor Distribution (Private) Limited v Employee (respondent)

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IN THE LABOUR COURT OF ZIMBABWE
CASE NO. LC/H/1053/22
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IN THE LABOUR COURT OF ZIMBABWE	CASE NO. LC/H/1053/22 HARARE, 27 OCTOBER 2023	JUDGMENT NO. LC/H/34/24

This is an appeal against a determination dated 4 October 2022 by a designated agent who ordered that the employee (respondent) be reinstated without loss of salary or benefits or be paid damages in lieu of reinstatement.

Background facts

The employee brought a claim for unlawful termination of employment, unfair treatment upon transfer, victimization, non-payment of termination and underpayments. His claims for unfair treatment upon transfer, victimization, non-payment of overtime, non-payment of terminal benefits and underpayment of wages were dismissed as being without merit. His claim succeeded in relation to unlawful termination. The employee has not cross appealed against the decision of the designated agent. The employer (the appellant) was not happy with the outcome and appealed to this Court.

Grounds of appeal

The employer’s grounds of appeal are three and these are they;

The designated agent erred and grossly misdirected herself by making a finding that Innscor Distribution (pvt) Ltd and vital logistics are two different entities when in fact the two are one entity.

The designated agent erred and grossly misdirected herself by making a finding that

the appellant had failed to prove that the respondent’s contract had been terminated by influx of time.

The designated agent erred and misdirected herself by making a finding that the respondent had been unfairly dismissed by the appellant.

The grounds will be considered ad seriatim

Ground of appeal No.1: whether or not Innscor distribution (pvt) Ltd and vital logistics are two different entities?

It is necessary to understand why this issue is relevant to this matter. In his claim, the respondent had submitted and argued that he was employed by Innscor Distributers (Pvt) Ltd. His employer, the appellant had employed him on 17 November 2008 and unlawfully dismissed him verbally on 30 November 2017. The employee argued that he was on a contract without limit of time.

On the other hand, the employer argued that at the relevant time, the employee was on a contract of a fixed term duration. He was not dismissed but the contract expired.

The designated agent found that the termination letter from vital logistics and the contract of employment for a fixed term did not prove that the respondent was unlawfully dismissed by Innscor Distributors. The termination letter of a fixed term contract written by vital logistics did not prove that there was a fixed term contract with Innscor distributers. A fixed term contract with one company could not translate to a fixed term contract with yet another company.

This is how its important to decide whether or not the two entities were in actual fact just one company. The proof produced showed the termination of a fixed contract by vital logistics and the designated agent held the view that it did not prove that the employee was on a fixed term contract with Innscor Distributors.

This decision to separate the two entities by the designated agent is the one which gave rise to the 1st ground of appeal on page 29 of the record. The respondent had submitted that the employee was employed by Innscor Distributors and the contract was without limit of time, and the contract could not have expired at the end of May 2016.

It was submitted that in June 2016 the employee was engaged by Staffing Solutions (Pvt) Ltd and not Innscor Distributors (Pvt) Ltd t/a vital logistics. The appellant had submitted that the respondent had signed a fixed contract on page 33 of the record with vital logistics, that contract expired on 31 May 2016. The respondent argued that he had been in an employment relationship with Innscor Distributors since 2008 and that contract was never terminated. The respondent denies ever entering into a contract with vital logistics. This cannot be the correct position in view of page 32 of the record which is a contract of a fixed duration with vital logistics and it was signed by the employee. The employee admits that he was employed by Innscor Distributors. The record shows that Innscor distribution is the same entity with vital logistics, nothing can therefore turn on the argument by the appellant that he was not employed by vital logistics.

I do not think that it can be disputed that the two entities are one. Vital logistics is a trade name. The respondents letter dated 9 February 2018 which is on record also shows that he believed the two entities are not separate entities. There is therefore merit in ground of appeal number one.

Ground of appeal No.2

The designated agent concluded that there was nothing to show or prove that the contract was terminated by influx of time. The record shows that there was a contract of employment for a fixed duration and a letter indicating that the contract of employment had expired or that it had been terminated by influx of time, the designated agent’s reasoning for rejecting the employer’s position was that the entities are two separate entities.

It appears from his reasoning that he had no other issues. He did not believe that the respondent had not signed the agreement, he did not believe that there was no fixed term contract between the parties. His sole reasoning was that the two entities were separate entities.

This court has found that he could not correctly arrive at that conclusion in view of the submissions made on record that the two entities were not separate entities but one. The position that would remain in view of the court’s finding that the two entities were not separate is that there would be no other reason to hold that there was no fixed term contract signed by the parties which terminated by influx of time. There is therefore merit in this ground of appeal.

Ground of appeal number 3

Once it is accepted that there is a valid fixed term contract which bound the parties, and that the contract expired and was not renewed, then it cannot have been found that there was unfair dismissal. There is merit in this ground of appeal.

The result is that all the three grounds of appeal have merit. The designated agent grossly misdirected herself in her findings and conclusion of facts.

An appellate court is ordinarily slow to interfere with findings of facts made by a lower tribunal unless it can be shown that the findings complained of are so grossly irrational that no tribunal applying its mind to the facts placed before it, could have come to such a conclusion.

See in this regard the case of Hama v National Railways 1996 (1) ZLR 664. See also Nyahondo v Hokonya and others 1997 (2) ZLR 475.

In casu however, I am of the view that the appellant grossly misdirected herself and the decision should be interfered with.

The following order is made;

The appeal succeeds.

The decision of the designated agent dated 4 October 2022 be and is hereby set aside.

The respondent’s claims are dismissed.

Each party bears its own costs.

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