Luxon Muzungu v Warapp Engineering (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/47/2025
HARARE, 07 FEBRUARY, 2025 AND
11 FEBRUARY 2025
CASE NO LC/H/1095/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/47/2025

HARARE, 07 FEBRUARY, 2025   AND

11 FEBRUARY 2025                         	                      CASE NO LC/H/1095/24

LUXON MUZUNGU						APPELLANT

WARAPP ENGINEERING (PRIVATE) LIMITED		RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant			- F. Siyawareva, Attorney

For Respondent		- T.E. Gumbo, Attorney

MUSARIRI, J:

On the 23rd September 2024 at Harare, Arbitrator B Mudiwa issued an award wherein he dismissed appellant’s claim of unlawful termination of employment by respondent. Appellant then appealed the award to this Court in terms of Section 98(10) of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the appeal.

The grounds of appeal were six-fold as follows;

“1. The Arbitrator erred and misdirected himself on law and fact in finding that Appellant is an independent contractor when he was engaged as a permanent employee under the direct control and supervision of the Respondent from 4 May 2025 until 1 May 2023 when his contract was unlawfully terminated.

2. The Arbitrator erred and misdirected himself in finding that there is no proof of draft contract of employment when there is a draft contract of employment, when Appellant was entitled to a fixed monthly salary, leave cashments, he was on the salary schedule, was entitled to have his vehicle insured as per company policy, he accrued leave days, he was fully employed with fixed working hours, was not supposed to work for any other company and Respondent’s company profile indicated that he is an employee.

3. The Arbitrator erred and misdirected himself in failing to follow case law which states that an unsigned contract is evidence of an agreement between the parties and that the principle of quasi mutual assent applies in such circumstances.

4. The tribunal erred in fact and law in dismissing the Appellant’s claim on the mere basis that the raising of invoices is not consistent with employer-employee relationship without any lawful basis, when it is clear that there is no law which prohibits raising of invoices by an employer if he is asked to do so.

5. The arbitrator erred and misdirected himself in giving an overemphasis on termination notice letters dated 3 April 2023 and 21 May 2023 which justified termination without following law and procedure and overlooking other surrounding circumstances like nature of relationship, payment of leave days, bonuses which is only done to employees and company profile.

6. In all the circumstances, the judgment of the tribunal aquo was grossly unreasonable such that no reasonable tribunal properly exercising its mind to the law and facts would have reached the same judgment. Order sought…”

Appellant prayed that the award be set aside and substituted with an award of damages for loss of employment.

In limine

In its opposing affidavit, respondent raised the point in limine to the effect that the grounds of appeal do not raise questions of law and/or that the 2nd to 6th grounds are mere elaborations of the 1st ground. In oral argument respondent seemed to concede that the 1st ground raises a question of law. This Court is of the view that the 1st ground raises both issues of fact and law. The 2nd to 5th grounds are elaborations of the 1st ground in the form of arguments. Their place should be in heads of argument and not the notice of appeal. The 6th ground is just a conclusion based on the preceding paragraphs. It is not a stand-alone ground of appeal. Therefore the 2nd to 6th grounds of appeal stand to be struck off the record.

Merits

The main issue before the tribunal a quo was set out by the arbitrator thus;

“1. To determine whether or not the claimant was an employee of the Respondent or was an independent contractor.”

After noting each party case and arguments, the arbitrator concluded thus;

“The tribunal noted that Section 12(1) of Labour act provides that a person is deemed to be under a contract of employment whether that contract is reduced to writing or not. The arbitrator would have regarded the claimant an employee even in the absence of a written contract. The claimant however should be in a position to prove that indeed he was an employee especially if the other party raise contrary averments. The claimant dismally failed to prove his status. It is clear that both parties were engaged in any unwritten contract.

Parties have from time immemorial been encouraged to enter into a clearly written contracts which defines the nature of the relationship which they intend to conclude rather than to leave the fate of the parties to be determined by the courts of law in case of a dispute. The tribunal accordingly had to resort to the use of the evidence led by the parties to establish whether the parties had concluded a contract of employment proper (location conductio operarum) or a contract for the provision of work (locatio conductio operis).  The evidence submitted by the claimant was strongly supporting the position of the respondent that the parties had concluded a contract for the provision of consultancy services. The attempt to attach an unsigned written contract of employment that dates back to the year 2015 further weakens the claimant’s case. The absence of pay slips to the claimant only and the raising of invoices after offering services further supports the position of the Respondent. The evidence of supervision and restricted working hours has not been supported by relevant evidence…”

In oral argument appellant relied on the unsigned contract, company profile, invoice for leave days and emails to bolster his argument that he was an employee rather than a consultant. The only piece of evidence which directly mentions an employment contract is the unsigned contract. However its cogency is weakened by its being unsigned. Furthermore the document was prepared by appellant himself. Lastly in the same document he called his position “Human Resources Manager (Consultant).” What weighs most was the absence of a pay slip were employees of respondent had pay slips. Appellant had to produce an invoice for payment of his services. That is precisely what consultants or independent contractors (lawyers, doctors, accountants, etc) do.

The arbitrator correctly relied on the following quote in the learned author Dr Lovemore Madhuku’s Labour Law of Zimbabwe at p29 (last paragraph),

“The assessment of whether a person is an employee or self-employed does not involve mechanical exercise of running through a checklist.

It is necessary to stand back and assess the whole picture which emerges from the accumulation of the details.” Underlined for emphasis.

Conclusion

Respondent’s point in limine was well-taken and stands to be upheld with consequential relief. The main issue raised by the appeal and response is resolved against appellant per the aforegoing analysis. The appeal therefore ought to the dismissed as devoid of merit.

Wherefore it is ordered that,

Respondent’s point in limine be and is hereby upheld so that the 2nd to 6th grounds of appeal in appellant’s notice of appeal are struck off the record;

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E