Murewa Rural District Council v Tendai Kamuti and 7 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/230/2023
HARARE, 24 MAY 2023 and
26 JULY 2023
CASE NO LC/H/83.23
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 24 MAY 2023 and 26 JULY 2023

JUDGMENT NO LC/H/230/2023

CASE NO LC/H/83.23

MUREWA RURAL DISTRICT COUNCIL

TENDAI KAMUTI AND 7 OTHERS

APPELLANT

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Appellant

For Respondent

Mr. T. Kabuya (Legal Practitioner)

Mr. G. Makwanya (Legal Practitioner)

CHIVIZHE, J:

The appeal was noted as against a determination of the Designated Agent for the National Employment Council (NEC) for the Rural District Councils. The determination which was handed down on the 13th of January 2013, in its operative part directed the reinstatement of the now Respondent without loss of salary and benefits or in the alternative, payment of damages for loss of employment in lieu of reinstatement. The parties were to approach this court for quantification in the event of failure to agreeon suchdamages. The Appellant was also directed to pay to Respondents their outstanding salary arrears for February, 2022, August 2022 and September 2022. The appeal is opposed by the Respondent.

The material background facts of the matter as elicited from the Designated Agent award are as follows. The Respondents submitted before the Designated Agent that they were engaged on 31 January 2022 by the Appellant after their contracts with Romania International had expired. They said they were engaged on the basis of contracts without limit of time. The Respondent also submitted that they had however been requested to sign fixed term contracts in August 2022 but had refused on the basis that they believed the Appellant was unilaterally varying their contracts. The Appellant had proceeded to terminate the contracts on 24 September, 2022. The Appellant presented a contrary position to the Respondents submissions. The Appellant submitted that the Respondent had been engaged on the basis of fixed term

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contracts from January 2022. There were two 3 months fixed terms contracts entered between the parties the last terminating on 30 June 2022. Appellants further submitted that upon expiry of last contract the Respondents had been advised of the termination of contracts. Appellant also submitted that contrary to Respondent position the Respondents had been paid their February 2022 salaries and had the onus as claimants to prove the claims made in respect of August and September salaries. The award reflects that Respondent did not agree with Appellant, they submitted in counter that it was incumbent upon the Appellant as the employer to keep all records on the basis of Section 125 of the Labour Act [Chapter 28:01]. The onus was therefore on the Appellant to prove that it had paid them.

GROUNDS OF APPEAL

The Appeal had been filed on the basis of the following grounds;

1. The Designated Agent grossly erred at law and factually in making a finding that the Respondents were engaged on an open ended contract when there was no evidence to such effect.

2. The Designated Agent grossly erred at law and factually in failing to make a finding that the Respondent’s refusal to sign their fixed term contracts meant that they knew they were engaged on a fixed term contract.

3. The Designated Agent grossly erred at law and factually in falling top find that the Respondents did not prove that they were not paid their salaries

PRELIMINARY POINTS

The Respondent, through their opposing papers, had taken a point in limine, that the appeal was fatally defective in that the Appellant had failed to submit a complete record as required by Rule 19(b) of this court rules. This point was however abandoned by Respondent Counsel on the date of hearing. The point in limine therefore stands as dismissed for lack of merit. The Appellant had also taken a point in limine that the Respondent’s opposition was fatally defective by reason of the fact that it gives an address of service outside the stipulated radius. The Appellant was relying on Rule 7 of the Labour Court Rules, 2017 and the authorities in Chikura and Another vs Al Sham’s Global BVI Limited SC 17/2017, Manikwa and Another vs ZIMDEF & Anor SC 73 of 2017.

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Parties presented oral arguments on the point in limine as taken by Appellant. After listening to submissions the court reserved ruling in the point. On resumption of the matter the court handed down an order dismissing the point in limine as taken by appellant and indicated reasons will be included in main judgement.

RULING ON PRELIMINARY POINT

The Appellant Counsel had submitted that this court, ought to find that the Notice of Response as filed by Respondent is improperly before the court as Rule 7 of this court rules provides that ‘every party’ shall provide own address within 25 km radius of the court. The address as furnished by the Respondent was 75km outside the radius. On this basis the Appellant prayer was for Court to dismiss the Notice of Response as being improperly before the Court. Appellant’s Counsel further submitted that although Rule 7 refers to ‘every party’ and in the body only refers to ‘Appellant’ or ‘Applicant’ an interpretation of the rule should show it was not the intention of the legislature to only address the requirement to an Appellant or Applicant, but also to any Respondent. Counsel also submitted that Rule 7(1) had to be read with Rule 7(2). In other words, there is no exception whether one is represented by a legal practitioner or representative or not, one still needs to furnish an address within the stipulated distance of 25 kms from the court.

The Respondent Counsel in reply submitted that the Notice of Response was properly before the court. The rule clearly referred to only “Appellant/Applicant” who is noting an appeal/application. The rule does not refer to a Respondent.

In dismissing the point in limine the court found that the point could only be resolved by an interpretation of rule 7. The rule 7(1) and (2) read as follows:

“(1)	 Every party shall, at the time when he or she notes an appeal or makes any application, give an address at which he or she accept service in terms of these rules. The address for service shall be within a radius of twenty-five kilometres from the registry where the appellant or applicant files the appeal or application.

Provided that the Registrar may refuse to accept any document which does not comply with this rule.

(2)	 Where a party is represented by a legal practitioner or representative, the party’s address for service shall be that of his or her legal practitioner or representative.”

The court in interpreting the rule applied a literal interpretation. In taking this approach the court was following solid precedents in the labour law field. See Moses Mawire vs Rio Zim (pvt)(ltd) SC 13/21. In taking the approach the court was also cognisant of the fact of the court being a Labour Court whose special role, as outlined in the Mapondera and 55 others vs Freda

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Rebecca Holdings (pvt)(ltd) SC 81/22, is “… to do simple justice for the common person without being shackled by legal technicalities and formalities pertaining to an ordinary court of law” . My findings therefore were that, firstly, whilst the rule refers to ‘every party’ it is clear from the body of the rule it only refers to ‘Appellant’ or ‘Applicant’, Secondly the rule makes no mention of Respondent, thirdly there is no basis for interpreting the provision as also including Respondents as the Labour Court is a creature of statute, it is therefore confined only to that which is provided in the Labour Act/Rules, arguments of fairness and equity were not persuasive in this case in view of the special role of the court which is to do simple justice between parties and to avoid being bogged down by technicalities as such. It was also my view that the issue of any necessary amendments to that provision must be left to the legislature. The court also noted that the rule provides no specific penalty for an applicant/appellant who fails to provide an address within the stipulated radius. The court also fully agreed that rule 7(1) had to be read with rule 7(2). Lastly the court noted that the rule had in any event been amended by Labour Court (Amendment Rules,2023 (No.3) S.I. 3 of 2023 by deletion of subsection (1) and substituted with a provision to include an email address as an alternative to the physical address. It was on this basis I dismissed the point in limine for lack of merit.

MERITS

On merits the Appellant through its papers filed submits that the Designated Agent erred and misdirected himself at law in finding that the Respondent were engaged on an open-ended contract in the absence of any evidence tendered by Respondent to prove/establish the position. Appellant submits the Respondent did not contest that they were engaged by Appellant on two three months fixed term contracts the first running from 1 January 2022 to 31 March 2022, the second running from 1st April, 2022 to 30 June 2022.

The Appellant also submits that the Designated Agent erred by failing to find that the Respondents refused to sign the fixed term contracts which pointed to their knowledge of their contracts being fixed term contracts. The Appellant submits the failure by Designated Agent is actually gross at law. The Appellant has used this court to find the finding was grossly unreasonable in view of the factual and circumstances prevailing that no contracts were produced and that this court should interfere with the factual finding made. Appellant has relied upon the authority in ZINWA vs Mwoyounotsva SC 28/15. The Appellant further contends that it had on its part produced in evidence the fixed term contracts that Respondent had refused to sign. On this basis Appellant was urging the court to find the Designated Agent

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determination as grossly unreasonable in view of the clear evidence placed before him. The Appellant prayer was for the court to uphold its appeal and set aside the Designated Agent’s determination.

The Respondent through their opposition papers submit that the appeal has no merit. They dispute that they were ever engaged on the basis of fixed term contracts, they deny refusing to sign the fixed term contracts they contend instead that they were engaged from inception on the basis of contracts without limit of time. They disagree with Appellant on date of engagement being in January 2022. They submit they were engaged on the basis of open-ended contracts as from 1st of February, 2022 to the date of their unlawful termination that is 24 September, 2022. They placed the onus on Appellant to prove its contention that they were engaged on fixed term contracts. Lastly, they submit the employment relationship between them was one regulated in terms of Section 12(3) of the Labour Act [Cap 28:01]. The Respondent further position is that the Appellant had clearly erred in terminating their open-ended contracts without following the procedure. The Designated Agent was therefore correct in finding an unlawful termination and directing reinstatement or in the alternative damages in lieu of reinstatement. In oral submissions the parties adhered to the position as taken in their written submissions

ANALYSIS AND FINDINGS

There are in my view two issues for determination before the court. The first is whether the Designated Agent erred and misdirected himself in arriving at the conclusion that Respondents were engaged on the basis of open-ended contracts. The second issue is whether the Designated Agent erred and misdirecting himself in awarding theclaims for unpaid salaries. I proceed to address the two issues seriatim.

WHETHER THE DESIGNATED AGENT ERRED AND MISDIRECTED IN FINDING RESPONDENTS WERE ENGAGED ON OPEN-ENDED CONTRACTS

The issue is very simple. It is clear from a perusal of the award that the Designated Agent faced with the divergent positions as submitted by the parties before him, proceeded to weigh those submissions and found that the Respondent position was more probable. He therefore madea factual finding that the Respondents were engaged on the basis of open-ended contracts. He stated as follows:

“The Respondent (who is now Appellant) did not provide proof of the fixed term

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contracts that the claimants signed when they commenced. In the absence of proof of the initial fixed term contracts I accept the claimants’ argument that they were engaged on open-ended contracts”

Before this court Counsel for Appellant did concede that no fixed term contracts were issued upon commencement of the contract. It was his submission that the first fixed contracts were only issued in June, the Appellant having overlooked to issue the contracts upon commencement. On the basis of these further submissions it is clear that the Designated Agent did not err or misdirect himself in arriving at the conclusion reached. That is the conclusion any reasonable decision maker would have reached on the basis of the facts.

The finding by Designated Agent is, as correctly submitted by Respondents, also in accordance with the tenets of law, more particularly Section 12(3) of the Labour Act [Cap 28:01]. Section 12(3) provides as follows;

“(3) a contract of employment that does not specify its duration or date of termination other than a contract of casual work in season work for more specific services shall be deemed to be a contract without limit of time.”

It is clear that, in casu, the Appellant having failed to specify upon engagement the nature of contract it was reasonably concluded by Respondents that their contracts were open-ended contracts. The submission that they were advised upon engagement that they were on fixed term contracts was simply not supported by any evidence before the Designated Agent. The fact that their refused to sign the fixed term contracts presented to them in June was justified as they believed the employer was now seeking to unilaterally vary their contracts of employment.

The court’s finding is therefore that the Designated Agent did not err and misdirect himself in the conclusion reached that based on the facts and submissions made before him Respondents were engaged on open-ended contracts by Appellant and that the Appellant had terminated the Respondents without following the provisions of the law.

WHETHER OR NOT THE DESIGNATED AGENT ERRED OR MISDIRECTED HIMSELF IN THE FINDINGS MADE ON UNPAID SALARIES.

Although this point was raised as the third ground of appeal the Appellant did not address the issue in its heads of argument. The point has to be taken as abandoned by the Appellant. Assuming the court is wrong however in taking this approach it is also clear that this ground also clearly stands to be dismissed for lack of merit.

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In his award the Designated Agent made the following findings on page 7 of the record.

“The Respondent (now Appellant) argued during oral hearing that the February 2022 were paid and their claimants should prove that they were not paid. On the other hand claimants argued that in terms of Section 125 of the Labour Act, records are kept by the employer and as such it is incumbent on the employer to prove that they were paid. I accept the claimants argument on the February 2022 salaries. The claimants said they continued working until 24 September 2022 when they were verbally terminated. The claimants submitted that proof that they worked up to September 2022 is shown in the occurrence book. I accept the claimants argument that they worked up to 24 September 2022 and I also accept their argument that their contracts were unlawfully terminated.”

It is clear that the Designated Agent made findings of fact. The findings were based on the submission as made before him. The Respondents indicated that they were unable to prove/establish before him the issue of the non-payment of salaries in view of the fact that it was Appellant who kept the records. Having placed this submission before the Designated Agent the Appellant did not contest the submissions made. The Appellant also did not seek to place the evidence of the salaries paid before the Designated Agent. It is indeed the position that in Section 125 of the Labour Act [Cap 28:01] the employer is required to retain such information. The Appellant having failed to produce such evidence before the Designated Agent, the Designated Agent was correct in concluding that the Respondents were indeed owed the arrear salaries. Such a finding cannot be impugned unless the Appellant shows that it was irrational. See Hama vs National Railways of Zimbabwe 1996(1) ZLR 664(S) 670 C- E. The Appellant has failed to prove any misdirection or error in the findings made by the Designated Agent in regards the salary issue.

In the results, it is ordered as follows;

he appeal be and is hereby dismissed with costs.

Matsikidze Attorneys at Law, Appelant’s Legal Practitioners Sakala and Company, Respondents’s Legal Practitioners