Techno Revelation Centres v John Mufudza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/382/16
HELD AT HARARE ON 23RD FEBRUARY, 2016
CASE NO. [CASE NUMBER]
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/382/16

HELD AT HARARE ON 23RD FEBRUARY, 2016 	     CASE NO. LC/H/258/13

AND 10TH JUNE, 2016

In the matter between:-

TECHNO REVELATION CENTRES					    Appellant

And

JOHN MUFUDZA								    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Ms M.F. Siwela (Director)

Respondent	:	In Person

MHURI J.

On the 16th April, 2012 Respondent’s complaint of non-payment of remuneration was referred to a Labour Officer for conciliation.  The issue could not be resolved and was subsequently referred to compulsory arbitration.

The term of reference to the Arbitrator was to consider:-

Whether or not the Respondent was an employee of Appellant or was a volunteer.

Placed before the Arbitrator, was a document dated 6th June, 2012 titled COMPLAINT SUBMISSION in which Respondent substantiated his complaint.

The first paragraph of this document reads as follows:-

“My complaint is that Techno Revelation Centres have not paid me my salary since from May 2011 to March, 2012, the period I stopped going or doing any work for this organisation due to non-payment and lack of money for transport.  I was employed as a Senior Accounting and Finance Manager and I am owed a total of US$9 190.  (…….. We had agreed on the average of the salary survey that was done by the Chief Executive Officer).”

In subsequent paragraphs Respondent articulates how he was engaged by Appellant.

It is clear from the first paragraph that Respondent decided on his own to stop working for Appellant.

The arbitral award that gave rise to this appeal is as follows:-

“After careful consideration of both parties’ submissions and having carefully considered the position of the Labour Laws, when one renders services in conformity of Labour Regulations that person is entitled to payment commensurate of the rendered services and stipulated grade.

In the circumstance, this arbitrator orders reinstatement of the Appellant without loss of benefits and payment of all his accrued arrears of salary.  Should relationship of employer employee’s continuation proves unsustainable both parties should consider payment of damages…………”

It is against this award that Appellant launched this appeal.

Section 98 (4) of the Labour Act [Chapter 28:01] (The Act) provides for the determination of the Arbitrators terms of reference.

Section 98(9) of the Act gives an Arbitrator the same powers as the Labour Court when determining any dispute.

In casu, the record shows that the issue which was referred to the Labour Officer concerned an alleged non-payment of remuneration (11 months).  This is clear from the certificate of no settlement dated 21st May, 2012 Form LR2.

The Reference to Arbitration Form LR 4 states the terms of reference as

Whether or not Mr. Mufudza was an employee of Appellant or a volunteer.  This arose from the issue concerning non-payment of remuneration.

This was the issue the Arbitrator was mandated to consider and determine.  It is without challenge that an arbitration flows from a submission by the parties, which is an agreement indicating the mandate of the Arbitrator and the dispute to be resolved.

I did not hear the parties, more specifically Appellant argue that this was not the term of reference agreed to by them in compliance with Section 98(4) (supra).

FSI HOLDINGS LIMITED

vs

RIO TINTO ZIMBABWE LIMITED AND ANOTHER 1997 (1) ZLR 31 (S)

It is noted that on the Reference to Arbitration form, the Arbitrator is not asked to consider the applicable remedy after he has determined the main term of reference.

This notwithstanding, in view of Section 98 (9) (supra) the Arbitrator has inherent power to determine the remedy, for not to do so, the award is meaningless and cannot be enforced.

In casu, as the award reflects, Respondent was found to be an employee of Appellant.  Consequently, the Arbitrator ordered that he be reinstated without loss of benefits and payment of all accrued salaries.  In the alternative, he awarded payment of damages.

In view of Respondent’s submission that he stopped work in March, 2012, I find that the Arbitrator grossly erred when he ordered reinstatement of Respondent and the alternative of payment of damages.  It was not Respondent’s case that he was constructively dismissed and even if it were it would still be an error on the part of the arbitrator to order reinstatement when the intolerable conditions that led/caused the involuntary resignation were still ongoing.  This part of the award cannot be allowed to stand.

In the Act, employee is defined as follows:-

“means 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 circumstances where, even if the person performing the work or services supplies his own tools or works under flexible conditions of service, the hirer provides the substantial investment in or assumes the substantial investment in or assumes 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;”

The Act is silent on the definition of volunteer.

Employer is defined as meaning

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

The manager ……………………………….

The judicial manager …………………….

The liquidator ……………………………….

The executor ………………………………..

The curator………………………………….”

Section 12 of the Act is also pertinent.  It reads;

“Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

(Underlining for emphasis)

In coming to the conclusion that Respondent was an employee, the award clearly shows that the Arbitrator considered the parties submissions and was alive to Section  12 of the Act and also the definitions of employer and employee as stated above.  The Arbitrator’s finding was a factual finding which is not appealable.  This is trite.

Was the Arbitrator’s finding so grossly unreasonable as to amount to a misdirection of the law?

The answer is in the negative in my view.  It is not in dispute that the parties engaged each other in some discussion pertaining to the establishment of a Non-Governmental Organisation (NGO).  Respondent was called for and went through an interview.  A day after the interview, Respondent was called back and instead of being told that he was unsuccessful, he was given tasks to do.  He did those tasks (rendered services) over the period in question.  He was advised of a position i.e. Senior Accounting and Finance Manager but was told will be paid salaries when the NGO was fully established and operational.  He was advised that for the time being he would not be remunerated.

These facts clearly established an employer and employee relationship as is envisaged under Section 12 and the definitions stated earlier.

With such facts before him, I find that the Arbitrator‘s finding was not grossly unreasonable.  The Arbitrator’s award that Respondent be paid his accrued arrear salaries is to be confirmed.

Accordingly the appeal partially succeeds in so far as the order of reinstatement and payment of damages is concerned but fails in far as the payment of arrear salaries is concerned.

To that end it is ordered that Appellant pays a sum of $9 185,00 to Respondent as awarded by the Arbitrator.