Twindale Enterprises (Pvt) Ltd v Emmanuel Shoko

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/218/14
HELD AT HARARE 28TH OCTOBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/218/14

HELD AT HARARE 28TH OCTOBER 2014		CASE NO LC/H/586/12

& 11TH APRIL 2014

In the matter between:-

TWINDALE ENTERPRISES (PVT)LTD			Appellant

And

EMMANUEL SHOKO					Respondent

Before The Honourable B.S. Chidziva, Judge

For Appellant		Mr M.T.N. Chongore (Legal Practitioner)

For Respondent		Mr K Nhau (Organising Secretary)

CHIDZIVA, J:

The appellant is appealing against the arbitral award of Honourable C Moyo that was handed down on the 6th July 2012.  The award stated as follows

“It is hereby ordered that the claimant be paid a total of $4 579.26 not later than 30 days from date of the award, failure of which the applicant can take the matter in writing to the High Court for enforcement in terms of Article 35 of the Arbitration Act.”

The appellant’s grounds of appeal are that

The arbitrator erred by holding that there was an employer-employee relationship between the appellant and the respondent.  The arbitrator should have found that there was a Partnership Agreement.

The arbitrator erred in finding that respondent was suppose to be paid housing allowance, and leave days since this was not a term of the Partnership Agreement.

The arbitrator erred by disregarding that the respondent took away US$1000.00 which he has not accounted for.

The arbitrator erred by placing undue weight on the issue of failing to produce a CR14 and a Partnership Agreement as the Partnership Agreement was verbal and that is binding at law.

The arbitrator erred by finding that respondent was unfairly dismissed since there was Partnership and therefore the finding was completely erroneous.

The arbitrator erred in failing to consider that there was no way the respondent could have survived without being paid during the period he says he was not paid.

The appellant therefore prayed that the award should be set aside

and that the respondent’s claim be dismissed with costs.

The respondent in response told the court that

There was an employer-employee relationship as defined in the Collective Bargaining Agreement for the Transport Operating Industry.

The respondent was being paid on commission of 10% of income and was on a target of US$100.00 per day.  In September 2009 the respondent transferred to Masvingo and started plying the Renco Mine route.  This necessitated that the respondent and the vehicle relocate to Masvingo.

In September 1009, the respondent was not paid 10% commission because he was promised to be given a commuter omnibus and then continue to work without pay and he continued to deposit the US$100.00 target cash in the appellant’s account.

The vehicle was impounded in January 2011 and not October 2010 by VID Masvingo.  The appellant went to VID Masvingo and retrieved the vehicle and took it to Harare.

On the 2nd of February 2011 the respondent approached the appellant and requested that he be given back the vehicle but the appellant refused and abruptly dismissed the respondent from employment without notice.

There was no partnership agreement between the parties.  Disciplinary proceedings should have been taken if the respondent had a case to answer.

The respondent on these grounds therefore prayed that the appeal be

dismissed and that the arbitrator’s decision be upheld.

It is common cause that

The engagement of respondent, the alleged terms of contract and dismissal were never reduced to writing  everything was verbal.

The respondent drove the appellant’s commuter omnibus during the period in question.

What is to be decided is

Whether the respondent was employed by the appellant or not.  Whether there was a partnership agreement as stated by the appellant.

Whether the respondent was unfairly dismissed or not

Given the appellant’s company name one would assume that its a

properly constituted company with a CR14 form as provided for in the Companies Act.  One would expert such a company to reduce its business, contracts to writing.  Why would the appellant allow the respondent to take away the vehicle to Masvingo without any written agreement.

In their submissions to this court the appellant told the court that this was a Partnership Agreement which commenced on 21 June 2010 and ended on 8 November 2010. The appellant told the court that the case in question satisfied the requirements of a Partnership as stated by SMITH J in the case of Southampton Assurance Co of Zimbabwe of Zimbabwe Ltd v Mutuma & Anor 1990 (19 ZLR 12 that

a).  	He received no salary but was remunerated solely by way of commission earned.

b)  	His working hours were left to his individual discretion.

c)  	He was not entitled to vacation sick or any other form of leave.  He would      take leave whenever he wanted without getting consent from the appellant.

In the case of Rhodesia Railways & Ors v Commissioner of Taxes 1925 AD 438 at p 465 the essential elements were stated as follows

“These essentials are fourfold.  First, that each of the partners brings something into the partnership, or binds himself whether it be money or his labour or skill.  The partnership was obviously to be carried on for the joint benefit of both parties and its object was to make a profit, and finally the contract between the parties should be a legitimate contract.”

The respondent has denied that it was a partnership agreement.  The appellant has also failed to substantiate the partnership contract between them.

Section 17 of the Labour Act [Chapter 28:01] has defined an employee as follows

“(a)	in circumstances where even if the person performing the work or services supplied his own tools or works under flexible conditions of services, the  hirer provides the substantial investment in or assumes the substantial  risk of the undertaking or

(b)	In any other circumstance that more closely resembles the relationship between employee and employer than that between an Independent contractor and hirer of services.”

The respondent has described a relationship that more closely resemble

the relationship between an Independent contractor and hirer of services.  The appellant was also supplying the substantial investment by providing the vehicle. The appellant stood to lose more if the vehicle was lost and got involved in an accident.  This explains why he went to retrieve the vehicle behind the respondent’s back.

The respondent has also alleged that he was unfairly dismissed.  Section 12 (B) of the Labour Act [Chapter 28:01] describes unfair dismissal as follows

“a)	if subject to subsection (3) the employer fail to show that he dismissed the employee in terms of an employment Code.

b)	In the absence of an employment code, the employer shall comply with the model code made in terms of section 101 (a).”

The appellant did not describe the separation of their relationship as

falling under any code of employment.  Take it that this was a partnership why did they nicodemously retrieve the vehicle without telling the respondent that they were taking away the vehicle and they were now withdrawing from the partnership.

After a careful consideration of the evidence before this court.  This court is of the view that the respondent was unfairly dismissed from employment.  The appeal therefore lacks merit

Accordingly it is ordered that appellant pays the respondent the following amounts

Notice pay at NECTOI CBA rate of $196 per month

3 x US$196 = $588.00

Wages for the period September 2009  -   January 2011

= $196 x 17 months

= US$3332.00

Housing allowance at US$ 25.00 x 17 months

= us$425.00

Cash in lieu of leave for the period of 17 months at $7.53 per day

= US$234.26

Total	US$4 579.26

2. Each party to bear its costs.

Chingore & Associates, appellant’s legal practitioners