Multi Manufacturers (Pvt) Ltd v Willard Vono

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/735/13
HELD AT HARARE 31ST OCTOBER 2013
CASE NO LC/H/316/12
AND 3RD JANUARY 2014
JUDGMENT NO LC/H/735/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/735/13

HELD AT HARARE 31ST OCTOBER 2013	     CASE NO LC/H/316/12

AND 3RD JANUARY 2014

In the matter between:-

MULTI MANUFACTURERS (PVT) LTD			Appellant

And

WILLARD VONO						Respondent

Before The Honourable G Mhuri, Judge

For Appellant		Mr K Ncube (Legal Practitioner)

For Respondent		Mr L Zinyengere (Legal Practitioner)

MHURI,  J

This appeal centres mainly on the issue whether the Arbitrator was correct in holding that the Labour Officer and consequently the Arbitrator had jurisdiction to hear and determine this matter.

Appellant’s case on the one hand was that the dispute between it and Respondent was a commercial one over which the Labour Officer had no jurisdiction whilst Respondent’s case on the other hand was that the dispute was a labour dispute over which the Labour Officer had jurisdiction.

The Arbitrator found in favour of Respondent.  He found thus:-

There was a contract of employment between Mr W Vono and Multi Manufacturers.

The contract was unlawfully terminated.

The Labour Officer had jurisdiction to deal with the matter.

These findings gave rise to this appeal.

The factual background which is generally common

cause is that as from the 1st August 1999 to October 2008 the relationship between Appellant and Respondent was that of employer and independent contractor.  The understanding between the parties was that:-

Payments would be done upon submission of invoices to Appellant by Respondent.

Respondent would provide services to other employers provided Respondent met Appellant’s deadlines.

Respondent was not to abide by Appellant’s working hours similar to those of full time employees.

As from November 2008, the “relationship” between Appellant and Respondent continued until June 2010 when Appellant terminated it.

It is for this period that the status of the relationship became an issue.  Whether it was still an employer/independent contractor relationship or an employer/employee relationship.

Before coming up with the findings that he did, the Arbitrator found as undisputed the fact that Respondent was on a fixed salary of $300.00 per month as of November 2008 to January 2009.  As from September 2009 to May 2010 Respondent was on a fixed monthly salary of $1130.00.  This was despite the fact that Respondent had submitted invoices bearing larger amounts of money.

He also found as undisputed the fact that Respondent was a signatory to Appellant’s NMB Bank Account.  He sourced for loans from financial institutions on behalf of Appellant.  In doing so Respondent was not exposed to personal financial risk nor did he assume any responsibility for investment in Appellant’s business.

In view of the foregoing, the Arbitrator found that Respondent did his work as an integral part of Appellant’s business and not on his own account.

Section 3 of the Labour Act [Chapter 28:01] (The Act) states

“This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

. . . . . . . .

. . . . . . . .”

Except for those persons specifically mentioned

in subsections 2 and 3, it is trite that all other employers and employees relationships are governed by the Labour Act.  It is the Labour Act that in terms of Section 93 confers jurisdiction to Labour Officers to deal with and determine labour and employment issues.

Under the definition section, the Act defines employee as –

“Any person who performs work or services for another person for remuneration or reward on such terms and conditions as agreed upon by the parties or as provided for in this Act and includes a person performing work or services for another person –

in the circumstances where, even if the person performing the work or services supplies his own tools or works under flexible conditions of services, the hirer provides the substantial investment in or assumes the substantial investment in or  assumed the substantial risk of the undertaking;

or

in any other circumstances that more closely resemble the relationship between an employee and employer than that between an independent contractor and hirer of services.”

(Underlining for emphasis)

Employer is defined as

“any person whatsoever who employs or provides work for another person and remunerates or expressly or tacitly undertakes to remunerate him, and

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .

. . . . . . .”

On the other hand an independent contractor is defined as

“a person who undertakes to carry out for another person, a given piece of work, and in executing that piece of work, he uses his own discretion and is not subject to the orders of his principal.”

per PATRICK LLOYD in LABOUR LEGISLATION IN ZIMBABWE page 4.

It is common cause that the Parties relationship (employer/independent contractor) for the period 1999 to October 2008 was a verbal one.  It was not reduced to writing.  The same applies to the relationship for the period November 2008 to June 2010.  This, notwithstanding did not make the contract less of a contract and not binding on the Parties.

In casu I do not find fault with the Arbitrator’s findings.  There were pointers in the Parties relationship from which it could safely be deduced that there was an employer employee relationship between the two.  Firstly, as from November 2008 for three months Appellant paid Respondent a fixed amount of $300.00.  Why would this be so when Respondent submitted invoices bearing various and larger amounts.  As from February 2009 to May 2010 Appellant paid Respondent a fixed amount of $1130.00 again despite invoices bearing various and larger amounts.

I did not hear Appellant argue that this was also the trend during the employer/independent contractor period.

This fits well under the definition of employee as alluded to earlier in this judgment.  The absence of a contract of employment nor payslips is of no consequence in my view.  It was up to the employer to avail these and the fact that the Appellant did not, cannot be held against Respondent. Even for the first period there was no written contract.

One other pointer, is the fact that Appellant made Respondent a company signatory to its bank account, as a financial director.  Why would this be so if Respondent was just an independent contractor?  Further Appellant gave Respondent the powers to source for loans from financial institutions for the benefit of its business.  The question still remains, why would this be so if Respondent was just an independent contractor.

The record also shows that Appellant provided Respondent an office at its premises for his daily duties.  This submission was not disputed by Appellant.  Another submission which went unchallenged is that Appellant provided the tools and apparatus for the due execution of Appellant’s duties.

All these pointers are commensurate with an employer/employee relationship.

See:	The State v Lyons Brooke Bond 1981 ZLR 384.

“If however, we are dealing with what appears to be an unclear case, but where the nature of the contract between the two parties seems to be closer to that of employer/employee rather than hirer/independent contractor, then, in terms of paragraph (b) of the definition of “employee” the person in question will be considered to be an employee, and the Act will consequently apply to the contractual relationship.”

Per Patrick Lloyd Labour legislation in Zimbabwe (supra) page 5.

With the foregoing evidence placed before him, the Arbitrator cannot be faulted for finding that the circumstances more closely resembled the relationship between an employee and an employer than that between an independent contractor and hirer of services.

To that end the Arbitrator’s findings are unassailable and ought to be upheld.

The appeal therefore fails.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Gill Godlonton & Gerrans, Appellant’s Legal Practitioners

Mutumbwa Mugabe & Partners, Respondent’s Legal Practitioners