Mzimukhulu Lodge v Siyeni Tapeni & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE JUDGEMENT NO. LC/H/266/2023
HARARE,09 JUNE , 2023
CASE NO. LC/H/176/23
AND 11 SEPTEMBER, 2023
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IN THE LABOUR COURT OF ZIMBABWE JUDGEMENT NO. LC/H/266/2023 HARARE,09 JUNE , 2023	CASE NO. LC/H/176/23 AND 11 SEPTEMBER, 2023

In the matter between: -

MZIMUKHULU LODGE	APPELLANT

And

SIYENI TAPENI	1ST RESPONDENT

SAINA SHAIBU	2ND RESPONDENT

Before the Honourable B.T Chivizhe: Judge

For Applicant:	Mr D. Chemhere (Legal Practitioner) For 1st and 2nd  Respondent:	Mr T. Madzingwindi (Trade Unionist)

CHIVIZHE, J:

The matter was placed before me as an appeal against the determination of P. Dizha, the Designated Agent of the National Employment Council for the Catering Industry which determination is dated 27th of January 2023. The appeal is opposed.

Background Facts

The 1st and 2nd Respondent were both employed by the Applicant 1st. Respondent as Floor Supervisor and 2nd Respondent as Senior Section cook. As gleaned from the papers in the record 1st Respondent was engaged on a contract without limit of time, whilst 2nd Respondent was engaged on the basis of fixed term contracts. She had signed the first contract. This issue will be reverted to below.

The 1st and 2nd Respondents referred complaints of alleged unfair practice, unlawful termination of employment contracts, non- payment of wages and allowances. It is common cause this was during the Covid-19 period where employees were being requested to stay at home. Before the Designated Agent 1st and 2nd Respondents (who were claimants) submitted that 1st Respondent was engaged on 1st December, 2007 and was later elevated to position of Floor Supervisor Grade 10 in 2013, 2nd Respondent was employed in 25th December 2014 as a senior section cook Grade 6. They submitted that in February 2020 they reached agreement with the Appellant to have short working hours for three months. In July 2021 the Appellant had obtained an exemption to cover the period from July to September 2021. They contended that the exemption had been selectively applied against them only and not on the other employees. This was the basis of the claim for an unfair labour practice. They further submitted that from October 2021 the Appellant had even after the expiry of the exemption period, continued to deny them work. The Appellant also stopped paying them wages and allowances from October 2021 up to August 2022 the time of lodging of their claims suggesting that the Appellant had unlawfully terminated their contracts of employment. The Appellant had therefore violated the law when it unlawfully dismissed them without following procedure. The Appellant had also committed an unfair labour practice when it selectively applied the exemption cover. 1st and 2nd Respondent were praying for their reinstatement without loss of salary/ benefits. In the event that reinstatement was no longer tenable they were praying for the Appellant to follow section 12C of the Labour Act [chapter 28:01] to terminate employment. Both Respondents had attached to the papers computations of their salary/ benefits due from Appellant.

The Appellant, in response, submitted that there was no selective application of the exemption cover granted it by the NEC to place employees on unpaid leave from 10th July to 31st December 2021. The Appellant also contended that 1st and 2nd Respondent had not been discriminated upon, the Appellant had simply followed national directives by requesting all employees to stay at home. Appellant also condemned the false claims made by 2nd Respondent that she had been engaged as a Grade 6 cook whereas she had been engaged as a

grade 4 cook. Her employment period had also been inflated to 8 years when she had only been engaged for two years. In fact her fixed term contract had expired on 1st of May 2020 and she was no longer an employee. Appellant also submitted that there had been two applications for exemption the first from 1st July to 30th September 2021 that period was granted officially. There was an application for further extension from 1st October to 31st December (there was no official communication of the approval) Appellant submitted that however the NEC had approved the extension. This position was confirmed by the copy of email message from the NEC General Secretary NEC to the Appellant representative dated September 23, 2022 copy attached to Appellant papers.

The 1st and 2nd Respondent in replication to the Appellant submission persisted with their claims of selective application of the exemption cover, unlawful dismissal and non- payment of wages/benefits. The 1st and 2nd Respondents disputed the allegations that 1st Respondent had repudiated her contract by going outside the country from the 1st of January, 2022. It was her submission Appellant had not communicated with her during the period hence her claim of unlawful dismissal. In regards 2nd Respondent she disputed that she was no longer an employee as there had been no communication from Appellant on the non- renewal of her fixed term contract. She had also not been paid for accrued leave days even up to the time of lodging of the claim hence she remained an employee. The 2nd Respondent persisted with all the claims as submitted before the Designated Agent.

The Designated Agent after considering the parties written submissions and the evidence tendered before him made the following findings; firstly, that there was an unlawful termination of 1st Respondent contract of employment on the basis that Appellant did not follow appropriate procedure. He directed her reinstatement to her former position without loss of salary and benefits or in the alternative reinstatement being no longer tenable compensation to be paid in terms of section 12C of the Labour Act [Cap 28:01].   The second finding made by the Designated Agent was that the 2nd Respondent had signed a fixed term contract to cover the period from May 2021 to April 2022. The third finding made was that 1st Respondent was owed outstanding wages, housing and transport allowances for the period from October 2021 to March 2022 ZWL $214 03.80 and as $1219.77 for the period from April to August 2022. In the case of 2nd Respondent she was to be paid ZWL $186

889.70 for the period from October 2021 to March 2022 and US$ 348.35 for April 2022. The Appellant was directed to make payments to both 1st and 2nd Respondent within one month of the award.

APPEAL

The Appellant was aggrieved and noted the present appeal.   The appeal is premised on the following grounds of appeal;

“GROUNDS OF APPEAL

The Designated Agent erred in fact, which error was so gross that no reasonable person applying his mind to the same facts would have come to the same conclusion when :

She awarded the Respondents arrear salaries and benefits for the period of October 2021 to August 2022, despite clear evidence being presented to her that the Appellant had been granted an exemption by the National Employment Council for the Catering Industry to place its employees on unpaid leave from October 2021 to December 2021;

She found that the exemption for the period of October 2021 to December 2021 granted to the Appellant was being applied selectively to the Respondents, when there was no evidence on record to support that allegations;

She awarded the 2nd Respondent terminal benefits calculated from 2014 for a NECFI Appeals Committee Grade 6 employee despite there being clear evidence on record showing that 2nd Respondent was a NECFI Appeals Committee Grade 4 employee and only commenced her employment with the Appellant in 2018; and

She found that the 2nd Respondent signed a contract of employment with the Appellant which expired on 31 April 2022 despite there being no evidence on record to prove that fact.

The Designated Agent erred in fact and in law when she found that the Appellant had unfairly dismissed the 1st Respondent, she ought to have found that 1st Respondent had repudiated the employment contract by absenting herself from work without leave or explanation for a period in excess of six months and that the Appellant had accepted the 1st Respondent’s repudiation.

The Designated Agent erred in facts and in law when she found that the Appellant had unfairly dismissed the 2nd Respondent. She ought to have found that the 2nd Respondent was not an employee of the Appellant during the period of October 2021 to August 2022 because her contract of employment terminated in May 2020 by the effluxion of time and had not been renewed since then.

The 1st and 2nd Respondent in responding to the appeal raised a point in limine, that the appeal having been noted on a form not prescribed by the rules of this court, there was consequently no appeal before the court. In respect of the merits Respondent submitted that they stand with the determination made by the Designated Agent. Their prayer is for the dismissal of the appeal and upholding of the award handed down by the Designated Agent.

POINTS IN LIMINE

The Appellant through Heads of Argument had also taken as a point in limine, that the 1st and 2nd respondents having filed their notice of response, outside the period prescribed by Rule 19 (2) of this court rules, were therefore barred and this court had to treat the matter as unopposed. On the date of hearing however Appellant’s counsel opted to abandon the point in limine as initially taken. 1st and 2nd Respondents in similar fashion abandoned their point in limine leaving the court to only address the merits of the appeal. Both parties made oral submissions through their representatives and the court reserved judgment.

MERITS

This is an appeal that clearly stands to be allowed in view of the fact that it has merit. The Designated Agent in this case committed many errors of fact and law that his award simply cannot be allowed to stand. I shall proceed to highlight the major flaws of the award as handed down.   It is clear from the grounds of appeal and the submissions by the parties that the issues to be determined fall under three categories as follows;

Whether or not the Designated Agent committed gross errors of fact.

Whether or not the Designated Agent was correct in failing to find that 1st Respondent repudiated her contract

Whether or not the Designated erred in finding 2nd Respondent was still an employee.

I turn to address the issues seriatim.

WHETHER OR NOT THE DESIGNATED AGENT COMMITTED GROSS ERRORS OF FACT

It is trite that for an appellate court to interfere with the factual findings of a lower tribunal the decision of the lower tribunal must be shown to be so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question could have arrived at such a conclusion. The court was aptly referred by Appellant to Hama vs National Railways of Zimbabwe 1996 (1) ZLR 664 (5) where the Supreme Court stated as follows;

“the general rule of law, as regards irrationality, is that an appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regards to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion ”

Arrear salaries for the period of October 2021 to August 2022

There is no doubt that the Designated Agent did indeed commit a gross error of fact in awarding to the Respondents arrear salaries for the period covered by the second exemption. It is clear from a perusal of the record that indeed Appellant made submissions before the Designated Agent that it had initially been granted an exemption to place its five employees on unpaid leave from July to September 2021. The Appellant also submitted that it had sought further extension of the exemption from 1st October to December, 2021. The NEC had approved the extension but had not communicated with Appellant. The Appellant had also included in its papers supporting evidence in the form of the email from NECCI confirming the position that there had been an extension of the exemption period but regrettably the NECCI had not communicated on time.

The Designated Agent in his award however found Appellant liable to pay Respondent arrears salary and benefits for the period October 2021 to December 2021. This finding was clearly a gross error or fact. It also amounts to a finding that is contrary to evidence. The law is settled that such a finding is likely to be interfered with. See TM Supermarkets vs Mangwiro 2004 (1) ZLR 186 (S) at page 189 D-E as follows;

“I am also persuaded by the contention that the court a quo in this particular respect misinterpreted the evidence placed before it. This court has held, in Reserve Bank of Zimbabwe vs Corrine Granger supra that such a circumstance amounts to a misdirection in law. At page 6 of that judgments, Muchechetere JA stated as follows;

“ And a misdirection of fact is either a failure to appreciate fact at all or a finding of fact that is contrary to the evidence as presented.”

Selective Application of Exemption.

The record of proceedings shows that both 1st and 2nd Respondents had made allegations of unfair treatment and discrimination in the application of the exemption cover of the NECCI by the Appellant. They submitted that the Appellant had favoured the other employees by returning them to work and paying salary/ benefits during the period of exemption. The Appellant on the other hand, had submitted that all the employees were

on unpaid leave, the only difference was that the other employers were ordinarily resident in the Appellant premises as part of their contracts of employment. They were therefore allowed to remain there during the lockdown period. They however did not receive any remuneration or housing allowance and were responsible for their own upkeep during the time.

The Designated Agent went on to find on p.6 of his determination as follows;

“It is common cause that the employees were not reporting for duly from July 2021 6 September 2021 when the company was granted exemption from paying NEC stipulated wages. Others were going to work though the Respondent tried to justify its decision to have it effected in these two employees amongst five employees. This determining authority found out that tne claimants did not even go back to work even after the lapse of exemption which respondent should have communicated to them on what they were supposed to do. The fact that the Respondent allowed other employees to work whilst making the duo stay at home leaves a lot of unanswered questions.”

There is no doubt that in arriving at this conclusion the Designated Agent misdirected himself on the facts. It is clear that in arriving at the conclusion the 1st and 2nd respondents had not placed any evidence to support the allegation of unfair treatment or discrimination by the Appellant. The Designated Agent clearly misdirected himself in reaching the conclusion without any factual basis.

2nd respondent’s contract of employment

The Designated Agent also clearly misdirected himself on the facts he found that 2nd respondent had commenced employment with the Appellant in 2014 whereas the 1st Respondent as per contract commenced employment on 1st of May, 2018, and the fixed term contract was scheduled to run for a year. The contract also showed the Grade of 2nd respondent as grade 4 instead of grade 6 as claimed by the 2nd Respondent. The Designated Agent despite this clear evidence however went on to make a finding that 2nd respondent was a Grade 6 employee and her contract had commenced in 2014 and he thus awarded her terminal benefits calculated from 2014. This finding was made in the absence of any evidence to show that position. It clearly cannot stand.

2nd Respondent contract of employment

The Designated Agent also grossly erred in finding that 2nd Respondent signed a contract of employment with Appellant which expired on 31 April 2022 in the absence of any evidence to support that finding. During the proceeding before this court 2nd Respondent, through her representative, conceded that the Designated Agent had clearly erred in making a finding that her fixed term contract had expired on 31st April 2022. There was concession

that the last fixed term contract had expired in May 2021. There was an attempt by 2nd respondent to suggest that thereafter she had been on a silent contract. That submission however cannot be accepted by this court as it is a submission being made on an issue that was not before the Designated Agent. In other words, the matter being an appeal is based on the record of proceedings before the Designated Agent.

The fact remains that the Designated Agent committed a gross error of fact in paragraph 2 of his award where he found that 2nd respondent had signed a fixed term contract from May 2021 of one year and thus her contract expired in April 2022. That finding was clearly not supported by any evidence. There was clearly a misdirection on the facts.

WHETHER THE DESIGNATED AGENT ERRED IN FACT AND LAW IN FINDING 1ST RESPONDENT WAS UNFAIRLY DISMISSED

The Appellant submits that the Designated Agent erred in fact and law in failing to find that 1st respondent repudiated her contract of employment after she failed to report for duty from the 1st of January 2022. She is said to have only reported after six months. The Appellant contends that 1st respondent had actually been outside the country for the period. It had failed to locate 1st respondent in January 2022. 1st respondent had also failed to notify it of her whereabouts. In the circumstance the Appellant had accepted her repudiation of the contract. The Appellant referred to authorities such as Circle Cement vs. Nyawasha Supreme Court 60/2003 and Wala vs. Freda Rebecca Mine SC56/2016. The Appellant also contends it had no obligation to notify her of the acceptance of her repudiation.

The 1st respondent submission before the Designated Agent and before this court is that she was waiting for the Appellant to recall her to resume duties after the expiry of the second exemption period. The Appellant however had not contacted her. She disputes that she went outside the country at any point. The Designated Agent in his award found that 1st respondent was never dismissed from work. He stated as follows;

“It was argued that Siyeni Tapeni went outside the country and did not communicate. The Respondent should have charged the 1st claimant if she had committed an offence and if the Respondent was still considering her as an employee. It is  also not clear on  why the respondent was so concerned about the claimants ‘whereabouts when it was not in position to call them and provide them with work for more than six months. How were they going to earn a living? In the circumstance, this determining authority made a conclusion that the respondent no longer wanted the service of the claimant since others were going to work.”

The Designated Agent clearly erred in fact and law by failing to find that the 2nd Respondent had indeed repudiated her contract of employment when she failed to report for work in January 2022. She failed to place before the Designated Agent proof that she had reported for work or that she had sought to establish from the employer as to when she could resume duty. The Appellant was based on the authorities as referred to justified to accept her repudiation without any further need to notify her.

WHETHER OR NOT THE DESIGNATED AGENT ERRED IN FINDNG 2ND RESPONDENT WAS STILL AN EMPLOYEE

The Appellant submission is that the Designated Agent erred in the findings made as 2nd Respondent was no longer an employer since her fixed term contract had expired on 1st of May, 2020. The 2nd respondent had not performed any duties up to the time she referred her claim to the Designated Agent.   The 2nd Respondent position however as submitted before this court is that she had remained an employee by virtue of a silent contract.   She also had not been advised of the termination of the fixed term contract. The Appellant objected on the basis that by this last submission 2nd Respondent was attempting to introduce new evidence on appeal which evidence was never before the Designated Agent.

It is indeed a trite position at law that an appeal is bound by the four corners of the record and no party can bring in new evidence without leave of the court. The court was referred by Appellant to S vs Maphosa (CAT13 of 2007)

It is also worth noting that there was an attempt by 2nd Respondent representative to make an oral application to introduce further evidence in these proceedings. Upon the Appellant counsel objection to the procedure the 2nd Respondent representative opted to withdraw the purported application.   The Appellant counsel also applied for the striking out of a salary slip which had been improperly inserted in the record on page 37 of the record. That application, not being opposed by 2nd respondent, was duly granted and the salary slip was struck out of the record of proceedings.

The 2nd respondent Representative however made a clear concession that paragraph 2 of the Designated Agent award was clearly wrong, that in fact 2nd Respondent had never signed a contract of employment with the Appellant in May 2021 which contract was expiring in April 2022 as reflected in the award. That concession made is sufficient to justify

the setting aside of the award. It is the final nail to the coffin. The award simply cannot stand. It ought to be set aside.

In the result it is ordered as follows;

The appeal succeeds.

The decision of the Designated Agent dated 27th January,2023 be and is hereby set aside and substituted with the following;

“The claimants’ claims are hereby dismissed.’’

Appellants Legal Practitioners, Coghlan, Welsh and Guest