Self Help Development Foundation v Tabitha Makoni & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/315/16
HELD AT HARARE 7 MARCH 2016
CASE NO
JUDGMENT NO LC/H/315/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/315/16

HELD AT HARARE 7 MARCH 2016				CASE NO LC/H/624/13

& 13 MAY 2016

In the matter between:

SELF HELP DEVELOPMENT FOUNDATION				Appellant

And

TABITHA MAKONI & 2 OTHERS				Respondents

Before The Honourable B S Chidziva, Judge

For Appellant			Mr B Chidziva (Legal Practitioner)

TABITHA MAKONI		In person

JESTINA CHIKANYA		In person

SIPHELILE MAVHIYA		In default

CHIDZIVA, J:

This is an appeal against the decision of Honourable arbitrator J N Simango that was handed down on 13 January 2013.  The award is couched as follows

“Wherefore after carefully analysing the facts and the law, I made the following award

That the respondent pay the complainants a total amount of $360.00 + $3744.00 = $4104.00 for cash lieu of leave and wages.

The breakdown of the amount due to each employee is as follows

Tabitha Makoni (145.35 + 1512.00)

= $1657.35

Siphelile Mavhiya (107.33 + 1116.00)

= $1223.33

Jestina Chikanya (107.33 + 1116.00)

= $1223.33

That the payment be done on or before 25 February 2013 and the payment be done through Marondera Labour Offices.

I so award.”

The brief history of this matter is that

Respondents were previously employed by the appellant.  They decided to establish three departments namely

Training and Advisory Services

Savings and Credit

Administration (SHDF) Trust (The appellant)

As a result some employees were laid off and others were transferred from the trust

to other units.

The 1st respondent Tabitha Makoni was transferred to SHD Savings and Credit Company.  The other two respondents were also transferred to SHD Saving and Credit (Pvt) Ltd.

The grounds of appeal before this court are as follows

The honourable arbitrator misdirected himself in failing to appreciate that the respondents were not employed by the appellant but by SHD Savings and Credit Company (Pvt) Ltd.  There was no contractual relationship between the appellant and respondents

The computation of pay leave is without basis

The arbitrator erred at law in making an award against the appellant, a trust instead of the individual trustees.

The respondents in response told the court that they were employed by the

appellant and the arbitrator did not err by finding in their favour.

The appellant has produced Tabitha Makoni’s contract of employment with SHD Saving and Credit dated 1 August 2006.  A letter dated 1 August 2006 offering her a contract of employment as a branch supervisor with SHD Savings was also produced and marked as exhibit B.

The 1st respondent did not deny that she endorsed her signatures in acknowledgement of receipt of these documents.  These documents clearly show that she was an employee of SHD Savings and not SHDF Trust.  Her claim therefore should be against SHD Savings not SHDF Trust.

The appellant has also submitted to this court that the other two respondents were similarly transferred to SHD Savings and Credit Company.  The respondents have not produced anything to rebut appellant’s claims.

That being the case it therefore means that respondent’s claim should be against SHD Savings which had a contractual relationship with them.  SHD Saving is a separate legal entity from SHDF Trust.

In view of the foregoing this court finds that there is merit in the appeal.

Accordingly it is ordered that

The appeal be and is hereby granted.

Kantor & Immerman, appellants legal practitioners