Simbarashe Malunga & 2 Others v Shingirai Youth Centre

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/680/13
HARARE 6TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/680/13

HARARE 6TH NOVEMBER 2013			CASE NO LC/H/656/11

& 6 DECEMBER 2013

In the matter between:-

SIMBARASHE MALUNGA	 & 2 OTHERS			Appellants

And

SHINGIRAI YOUTH CENTRE					Respondent

Before The Honourable L Kudya, Judge

Appellants			In person

For Respondent		P Nyeperayi (Legal Practitioner)

KUDYA, J:

This is an appeal against an arbitral award where the arbitrator ruled that, the Appellants were casual workers and ordered that they be paid the amounts that they were short-charged on their casual work basis.

Facts of the case are that, the Appellants were employed by the Respondent in varying capacities and over durations some in excess of 2 years.  On 19th April 2011 they went to arbitration alleging unfair dismissal and under payment of wages.

Just before their appearance at arbitration about 3 months before arbitration they had been told to go on leave. When they came back, they were told that they had been laid off by the Respondent.  They argued that since they had worked for more than 6 weeks in every  consecutive  four months it means that, they had by operation of law became permanent employees who should have been have been laid off  in terms of the Act properly and should have received their correct benefits.

At arbitration, some documents purporting to be contracts of employment were tendered but, these failed to show the arbitrator the permanent status which the Appellants claimed related to them.  He concluded that, they were casual employees who were only entitled to 1 days’ notice to be laid off.

On the date or the hearing, Respondent raised a point in limine to the effect that, there was no appeal before the Court since it did not address points of law   regard being had to Section 98 (10) of the Act which states that, appeals against arbitral awards shall lie to Labour Court on points of law only.

After hearing submissions and explaining at length to the Appellants what a point of law and fact is, the Court ruled that, the point in limine was not merited.  It indicated further that, the reasons for the dismissal of the point would follow in the main judgment.  These are they.

It is worth noting that, what the Appellants were arguing about was that given the facts which were presented before the Arbitrator, he failed to exercise his discretion well by making findings of fact that, they were casual employees when it was apparent from the evidence tendered before him that they had become employees on contract without limit of time.

In essence, the argument was that, the Arbitrator’s decision was outrageous to that extent and defied common sense such that it had to be set aside.  The court was also alive to the self-actor status of the Appellants hence it was prepared to condone their failure to articulate their concerns in the legalistic fashion expected of officers with legal training.  It is on the above basis that the court was satisfied that it was in the interest of justice that the point in limine be dismissed and that the matter be determined on the merits.

On the merits of the appeal, the Appellants maintained that, since they were engaged by the Respondent for periods beyond those stipulated by the Act to connote casual employment the Arbitrator should have ruled that they were permanent employees who should have been laid off properly in terms of the Act.

The employees conceded as indicated in the arbitral award that, at the time of termination they were now on 2 weeks contracts.  This went against the provisions of the Act giving rise to the inference that the employees became permanent employees by operation of law.

Even at the appeal hearing, some documents were tendered which were meant to show that, the employees   were on renewable contracts. What was however apparent was the fact that, these contracts were for the 2008 period, the period which the employees do not dispute were contract employees then.

They however hastened to mention that, as at 2010 they were just working without signing any contracts hence their view that they were now permanent employees.

The employer or the other hand could not adduce categoric evidence to demonstrate that the said employees were casual workers as held by the Arbitrator.  It is also worth noting that the mischief which  was meant to be cured d by Section 12 (3) of the Act was to make sure that employers do not abuse casual work beyond its limits to avoid the responsibilities   which go with permanent employment status.

As earlier indicated, there was nothing before the Arbitrator which could be said to be categoric that the employees were casual employees if one notes that the 2 week stints engaged in went way beyond the six weeks, for   four consecutive months.

To that extent the arbitral award was irregular in holding that, the employees were casual employees.  It is in the light of the above that the Court is satisfied that the arbitral award fell foul of the proper exercise of discretion on by the arbitrator.  The arbitral award or that basis should be set aside.

IT IS ORDERED THAT

1. 	The appeal being with merit it be and is hereby allowed.

2. 	The arbitral ward is set aside and in its place the Respondent is ordered to reinstate the Appellants to their original positions without loss of pay or benefits from the date of dismissal.

If reinstatement is no longer possible Respondent is to pay the Appellants damages in place of the reinstatement. The parties are to agree on the quantum of damages failing which, either party can approach this court for quantification.

3. 	Each party to bear own costs.

Costa & Madzonga, Respondent’s Legal Practitioners