Venice Mine Complex (Private) Limited v Moses Chida & 8 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/28/25
HARARE, 6th MARCH, 2024
CASE NO. LC/H/720/23
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/28/25

HARARE, 6th MARCH, 2024 AND

24th JANUARY, 2025

CASE NO. LC/H/720/23

In the matter between-

VENICE MINE COMPLEX (PRIVATE) LIMITED	APPELLANT

And

MOSES CHIDA	1ST RESPONDENT

GILBERT PHIRI	2nd RESPONDENT

OSTERN NYATHI	3rd RESPONDENT

ANDREW MASEKO	4th RESPONDENT

KASTEIN ZULU	5th RESPONDENT

PHANUEL KAMUPIRA	6th RESPONDENT

NORMAN GUMBO	7th RESPONDENT

JOSIAH KATSETE	8th RESPONDENT

DANZEL LIFA	9th RESPONDENT

Before Honourable Chivizhe, Judge:

For Appellant:	Mr. K. T. Mutambo (Legal Practitioner)

For Respondent:	Mr. H. Mawema with Mr. T. Zishiri (Legal Practitioners)

CHIVIZHE, J:

This is an appeal against the determination of the Designated Agent of the NEC for the Mining Industry, which determination is dated 30th of August, 2023. The appeal is opposed.

The material background facts to the matter are as follows. The 1st to 9th Respondents were all employed by the Appellant. They were engaged in various work underground and in other areas linked to production underground. They were engaged on the basis of monthly fixed term contracts. They had served for periods ranging for at least a year and above. They were terminated upon effluxion of time of their last contracts. Thereafter they referred a claim of unfair dismissal to the Designated Agent.

Their argument was that by virtue of the nature of the work they were engaged to do being linked to production underground the Appellant ought to have placed them on contracts without limit of time instead of on contracts of fixed term. The 1st to 9th Respondents were relying on the provisions in the Collective Bargaining Agreement (CBA) for the Mining Industry Statutory Instrument 109 of 1993 at page 809 which defines “contract worker” as follows;

“Contract worker means an employee who is engaged for a fixed duration or for the performance of a specific task which excludes normal production underground’’

The 1st to 9th Respondents prayer before the Designated Agent was that the Designated Agent direct their reinstatement to permanent position in view of the legal position as laid in the relevant CBA.

The Appellant counter submission was that not at all the claimants were engaged in production underground. Gilbert Phiri was engaged as diamond drilling worker on the surface, Karsten Zulu was a team leader at the plant and Phanuel Kamupira as a Mill General on the surface. Appellant also contended that Kamupira had also been dismissed for misconduct. Ostern Nyathi was at the relevant time still in employment. The Appellant argued that the Respondent had misinterpreted the provisions of SI 109 of 1993 as none of the Respondent were employed to perform a specific task involving normal production underground. It was Appellant submission that SI 109 of 1993 did not restrict the employer from engaging employees to work underground on fixed term contracts it only stipulated the non-employment of contract workers for a specific task of normal production underground.

The Appellant further submitted that an ordinary and literal meaning of the provision was that the employer in the industry is at liberty to employ workers on fixed term contracts and for specific tasks provided those specific tasks and did not extend to normal production

underground. The Appellant’s prayer was therefore for dismissal of the claims by the Respondent.

The two terms of reference before the Designated Agent were to determine

whether or not the claimants (now Respondents) were unfairly dismissed

The remedy thereof.

In his findings, the Designated Agent outlined the root of the dispute as being the interpretation of the definition of ‘’contract worker’’ under the relevant CBA. Having set out the definition as it is outlined in the CBA, he then proceeded to interpret the term. In the analysis part of his findings he set out his own interpretation as follows;

“The ordinary and literal meaning of the definition in casu has it that there can be two scenarios in which an employee can be a fixed term contract worker. that is;

if an employee is engaged for a fixed duration.

if an employee is engaged for a specific task which excludes normal production underground.

In relation to the matter at hand, in my view there is need for further analysis of the second part of the definition. which in my view means that an employer can only be allowed to employ fixed term contract workers underground if they are engaged only for the performance of a specific task and not on a continuous renewal of contract basis.”

It was on the basis of this interpretation he therefore concluded that the Appellant having indeed engaged the Respondent to perform normal duties underground during their tenure of employment the employees ought to have been on permanent employment. He found the Appellant’s own interpretation of the definition provision as misplaced.

The Designated Agent went further to consider the purposive and contextual meaning of the definition of ‘contract worker’ by relying on section 2A of the Labour Act (Cap 28:01). He also made reference to the exhortation to the Labour Court judges by the Supreme Court to endeavour to apply the literal interpretation when interpreting statutes in Mapondera &55 others vs Freda Rebecca Holdings Limited SC 81/22. He outlined the mischief behind the definition provision as being to prohibit employers from perpetually placing employees on

temporary employment where work of a permanent nature is available. His view was that work directly linked to production could not be done on a fixed term or specific task basis as such work will always be available as long as there is production.

Having arrived at this position the Designated Agent concluded that the Appellant had therefore violated the CBA provisions by placing 1st to 9th Respondents who were performing duties directly linked to normal production underground on fixed term contracts instead of placing them on contracts without limit of time. The Designated Agent also conceded that Gilbert Phiri, Kerstan Zulu and Phanuel Kamupara should not have been party to the proceedings for the reasons as had been alluded by the Appellant. Ostern Nyathi also could not be a party as he was still in employment.

Having arrived at this position the Designated Agent then made the following findings;

It is my finding that, due to the nature of their work which is directly linked to production underground Claimants were supposed to be offered contracts without limit of time.

That, Respondent erred by placing Claimants on fixed term contracts instead of making them permanent in violation of SI 109 of 1993.

That, the fixed term contracts which were entered into by Claimants and Respondent are inconsistent with SI 109 of 1993 therefore a nullity at law and should be set aside.

Therefore, Respondent wrongfully terminated Claimants' contracts of employment on the basis that they are fixed term contracts when in actual fact they are not.

In his order he directed that

“In the result, the following determination is made:

That, Respondent be and is hereby ordered to reinstate Claimants; Moses Chida, Andrew Maseko, Norman Gumbo, Josiah Katsete and Danzel Lifa to their original positions from date of dismissal without of loss of wages and benefits, as employees on a contract without limit of time and not fixed term contracts.”

GROUNDS OF APPEAL

The Appellant was aggrieved and noted the present appeal on the basis of the following grounds.

The Designated Agent erred and misdirected himself by making a finding that the definition of a contract worker in terms of SI 109 of 1993 only allows an employer in the mining industry, to employ fixed term contract employees underground for the performance of a specific task.

The Designated Agent erred and misdirected himself by misinterpreting the definition of a contract worker in terms of SI 109 of 1993.

The Designated Agent erred and misdirected himself by making a finding that the Respondents were supposed to be offered contacts without limit of time owing to the nature of their work which is directly linked to production underground.

The Designated Agent erred and misdirected himself by making a finding that the Appellant violated SI 109 of 1993 and by setting aside the Respondents' fixed term contracts and substituting them with contracts without limit of time.

The Designated Agent erred and misdirected himself by making a finding that the Respondents had been unfairly dismissed and by reinstating the Respondents without loss of salary and benefits and not providing the alternative of payment of damages where reinstatement is no long tenable.

IN LIMINE

The court raised a preliminary point mero motu calling upon the parties to file written submissions to address the question as to whether the Designated Agent had jurisdiction, at the material time he sat to determine and issue an award, considering that Section 30 of the Labour Amendment Act No. 11 of 2023 had repealed the power of Labour Officers and by extension Designated Agents to issue rulings.

In supplementary submissions the Appellant contended that the Designated Agent indeed had the jurisdiction to adjudicate and determine the matter referred to him, notwithstanding the amendments introduced by Section 30 of the Labour Amendment Act, 2023. The Appellant submitted that the Designated Agent’s authority to determine disputes is derived from Section 63(3a) of the Labour Act [Chapter 28:01]. The Appellant emphasized that the determination by Designated Agent being impugned in this appeal was made pursuant to this provision and not under Section 93 of the Labour Act [Chapter 28:01] which was amended by Section 30 of the Labour Amendment Act, 2023. The Appellant relied on Section 25 of the Amendment Act, which explicitly preserved the powers of Designated Agents to redress disputes. The Appellant further argued that this provision underscores the continued authority of Designated Agents to adjudicate disputes within the industry-specific framework.

The Appellant submitted that Section 62(1)(a) of the Labour Act empowers employment councils to resolve disputes between employers and employees within their respective industries. This authority is exercised through Designated Agents, who are appointed and authorized under Section 63(3a). The Appellant emphasized that these provisions were not repealed or amended by the Labour Amendment Act, 2023. The legislative intent was to enhance the role of Labour Officers in unresolved disputes, not to diminish the jurisdiction of Designated Agents. The Appellant highlighted that Section 63(3a) allows Designated Agents, upon authorization by the Registrar of Labour, to redress or attempt to redress disputes. The term “redress” means to remedy or rectify an unfair situation, as established in Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 of 2020. The Appellant submitted that in the present case, the Designated Agent exercised this authority and rendered a final decision, removing the need for Section 93 of the Act to apply.

The Appellant argued that Section 30, which amended Section 93 of the Labour Act, applies only when a Designated Agent has attempted but failed to redress a dispute. The Appellant submitted that in this case, the Designated Agent had fully redressed the dispute, as evidenced by the decision under appeal. The Appellant further argued that Section 30 was introduced to address situations where disputes remain unresolved beyond the statutory time limits, allowing Labour Officers to assume jurisdiction. This amendment does not undermine the jurisdiction of Designated Agents who have already redressed disputes.

The Appellant relied on Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 of 2020 to clarify the role of Designated Agents. The Constitutional Court held that where the Designated Agent redresses a dispute by making a final decision, Section 93 of the Act does not apply. The decision is final and enforceable without confirmation under Section 93. The Appellant also referenced Mukwereza v Minister of Home Affairs & Anor 2004 (1) 445

(S) to support the principle that legislative provisions must be interpreted to give effect to their intended purpose. In this case, the legislature’s intent was to empower Designated Agents to resolve disputes efficiently within their jurisdiction. The Appellant contended that the Designated Agent acted within his jurisdiction in terms of Section 63(3a) of the Labour Act [28:01] and that Section 93, as amended by the Labour Amendment Act, did not apply. The Appellant prayed for the court to dismiss the point raised mero motu on jurisdiction.

The Respondents did not make any submissions on the point of law raised mero motu.

EVALUATION ON THE POINT IN LIMINE

The matter before this court involves an examination of the jurisdiction and powers of a Designated Agent under Section 63(3a) of the Labour Act [Chapter 28:01], particularly in light of the Labour Amendment Act, 2023. The court raised mero motu the issue of whether the Designated Agent had jurisdiction to adjudicate and issue the decision being appealed against in light of the need for clarification to be made on the role of Designated Agent after the amendment of the Labour Act by the Amendment Act, 2023. The court is grateful to Counsel for Appellant for the comprehensive submissions on the subject. The Appellant has argued that the Designated Agent had jurisdiction to determine the dispute and issue a final ruling under Section 63(3a), which remains unaffected by the amendments introduced by the Labour Amendment Act, 2023.

Section 63(3a) clearly empowers Designated Agents to redress disputes referred to them. This jurisdiction is industry-specific and distinct from the broader powers of Labour Officers under Section 93. The legislature’s intent to preserve this framework is evident in the amendments introduced by the Labour Amendment Act, 2023, which do not modify the scope of Section 63(3a). The decision in Isoquant Investments is persuasive in affirming that Designated Agents’ rulings are final and binding. The Labour Act does not require these decisions to be registered or confirmed for enforcement purposes.

The principle of statutory interpretation requires that clear and unambiguous provisions be given their ordinary meaning unless such interpretation leads to absurdity. As noted in Tapedza & Ors v Zimbabwe Energy Regulatory Authority & Anor SC-30-20, the golden rule of interpretation must be applied to Section 63(3a). The provision’s plain language supports the Appellant’s contention that Designated Agents retain jurisdiction to issue final decisions. The purposive approach further reinforces this interpretation. The legislature intended to maintain the autonomy of Designated Agents in addressing disputes within their industries, as evidenced by the amendments introduced to Section 63(3b).

The ruling in ZRDCWU v Nyanga RDC & Others, confirmed that Designated Agents’ decisions are not subject to the procedural requirements of Section 93. The absence of a mechanism for registering these decisions underscores their finality and binding nature. This court is persuaded by the Appellant’s arguments in support of the Designated Agent having had jurisdiction under Section 63(3a) of the Labour Act [Chapter 28:01] to redress the dispute and issue a final ruling. The amendments introduced by the Labour Amendment Act, 2023, did not in any way alter or undermine this authority. The point taken is consequently dismissed. The appeal is therefore properly before this court.

PARTIES SUBMISSIONS ON THE MERITS APPELLANTS SUBMISSIONS

The Appellant challenges the findings of the Designated Agent (DA) and argues that

the conclusions drawn were flawed in both fact and law. The Appellant contends that the Collective Bargaining Agreement (CBA) for the mining industry was incorrectly interpreted and applied, resulting in an erroneous determination.

The Appellant submitted that the definition of “contract worker” as outlined in Statutory Instrument 109 of 1993 (SI 109 of 1993) is clear and unambiguous. The Appellant highlighted the definition as derived from the statute which reads as follows;

“Contract worker means an employee who is engaged for a period of fixed duration or for the performance of a specific task which excludes normal production underground.”

The Appellant argued that this definition is contained in a CBA, which serves as a contract between employers and employees in the mining industry, which is formalized under the Labour Act [Chapter 28:01] to ensure legal enforceability. The Appellant also emphasized the importance of the application of the parole evidence rule. Reference was made to Ellse v Johnson SC 37/2016, where the Supreme Court held that where an agreement has been reduced to writing, the only admissible evidence about the terms of the agreement is the written document. The Appellant further submitted that the DA erred in interpreting the CBA as a regulation by the Minister, instead of it being a contract between the employers and employees in the industry.

The Appellant contended that the Designated Agent correctly acknowledged the grammatical meaning of the provision but failed to apply it correctly. The Appellant submitted that the CBA explicitly allows for two categories of contract workers, these being (i) those employed for a fixed duration and (ii) those employed for a specific task, excluding tasks involving normal underground production. The Appellant argued that the 1st to 9th Respondents fell under the first category, as employees engaged for fixed durations, and not the second. The literal interpretation supports this understanding, and the provision is not ambiguous. Citing Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S), the Appellant emphasized that courts should adopt the plain, literal meaning of words unless this conflicts with legislative intent or creates an irrational outcome. Further

reliance was placed on Chihava and Others v The Provincial Magistrate Franci Mapfumo

N.O and Another 2015 (2) ZLR 31 (CC), which reaffirmed the golden rule of interpretation that grammatical and ordinary meanings should prevail unless they produce inconsistent results. The Appellant submitted that there is no evidence in the CBA to justify depart we from the ordinary meaning of the words used. The DA’s reasoning, which suggested that the provision aimed to curb perpetual temporary employment underground, was clearly unfounded and unsustainable.

The Appellant also submitted that the DA misdirected himself by finding that the Respondents ought to have been offered contracts without limit of time because they were engaged to work underground. Employers are prohibited from hiring employees on fixed- duration contracts for roles involving underground work. The Appellant argued that the prohibition in the CBA applies only in instances involving the hiring employees for specific tasks underground, the prohibition does not apply for fixed durations. The Appellant further submitted that the 2nd Respondent namely Gilbert Phiri, the 5th Respondent, Kasten Zulu, and the 6th Respondent, Phanuel Kamupira were surface workers and therefore ineligible to claim unfair dismissal on the grounds allluded to. The 3rd Respondent namely Osten Nyathi’s services had been retained, rendering his claim for an unfair dismissed baseless.

The Appellant submitted that the DA erred by substituting the Respondents’ fixed-term contracts with contracts without limit of time. The law provides that where unfair dismissal is alleged, the appropriate remedies are reinstatement or damages, as per established principles. The Appellant relied on Mutsuta & Anor v Cagar (Pvt) Ltd, where the court held that a misdirection occurs when a tribunal fails to appreciate the facts or where a finding is made contrary to the evidence presented. The Appellant argued that the DA’s decision to impose contracts without limit of time in the circumstances was a gross misdirection.

The Appellant further argued against the DA’s award of punitive costs, submitting that litigants cannot be punished for asserting their rights. Higher costs must be justified, and the 1st to 9th Respondents failed to provide any valid reasons for such an award. The

Appellant’s prayer is for the appeal to be upheld, the award by the Designated Agent be set aside and substituted with an award dismissing the claim placed before him.

1ST TO 9TH RESPONDENTS SUBMISSIONS

The 1st to 9th Respondents argue that the appeal lacks merit, particularly in relation to the interpretation of the definition of "contract worker" under Statutory Instrument (SI) 109

of 1993. The 1st to 9th Respondents submit that the Designated Agent's findings are well- grounded in law and fact. They further contend that the definition of "contract worker" under SI 109/1993 lies at the heart of the dispute. SI 109/1993 defines a “contract worker” as “an employee who is engaged for a period of fixed duration for the performance of a specific task which excludes normal production underground.” The 1st to 9th Respondents contend that the Designated Agent applied the golden rule of statutory interpretation, which requires that the plain and ordinary meaning of words be adopted unless this results in an absurdity or inconsistency. In Tapedza & Ors v Zimbabwe Energy Regulatory Authority & Anor SC 30-20, the court held that the language used in a statute is plain and unambiguous, it should be given its ordinary meaning unless doing so leads to absurdity or inconsistency with the legislature’s intent. Applying this principle, the Respondent argued that the definition is clear and unambiguous. Employees that are engaged in normal production underground are expressly excluded from being classified as "contract workers." This exclusion means they must be given contracts without a fixed duration.

The 1st to 9th Respondent further submitted that the maxim expressio unius est exclusio alterius applies, which means the express inclusion of one category excludes the others. Thus, the specific mention of “contract workers” excludes underground production workers from this category. The Respondent cited Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) and Mudada v Tanganda Tea Company Ltd 1999 (1) ZLR 374 to underscore the principle that words in a statute must be interpreted in their grammatical and ordinary sense unless such interpretation leads to absurd results. The 1st to 9th Respondent submit that even if a purposive approach were applied, the outcome would align with the literal interpretation. This approach, as outlined in Mukwereza v Minister of Home Affairs & Anor 2004 (1) 445 (S), aims to ascertain the legislature’s intent. The exclusion of underground workers from the definition of "contract worker" demonstrates the legislature's clear intention for that class of workers to be engaged on permanent contracts.

The 1st to 9th Respondents also submit that the last ground of appeal is baseless. Where reinstatement is no longer feasible, the Designated Agent retains the authority to quantify damages. This principle is supported by ZESA Holdings Pvt Ltd v Clovegate Elevator Company Pvt Ltd & Anor SC 69-23, where the court acknowledged the permissibility of interim awards on liability while leaving quantum for future determination. The Respondent also relied on Mathews v Craster International Pvt Ltd HH 497-17 and Muchenie & Ors

v Stuttafords Removals Pvt Ltd HH 374-13, where the High Court held that quantification of damages is not an amendment but a subsequent determination arising from an earlier award. The 1st to 9th Respondent argued that the Designated Agent’s interpretation of "contract worker" as excluding underground production workers is legally sound. The findings in paragraphs 2.1 to 2.5 of the determination are unassailable. The Respondent emphasized that the court’s role is not to legislate or amend statutory provisions. Instead, courts are tasked with giving effect to the clear language of the legislature. This principle was affirmed in Car Rental Services Pvt Ltd v Director of Customs and Excise 1988 (1) ZLR 402, where the court held that effect must be given to the text of the statute, not what the court believes it should have said. The 1st to 9th Respondents contention was that employing underground workers on fixed- term contracts contravened the CBA which is encapsulated in SI 109/1993. The Respondents were employed for roles involving normal production underground and should not have been engaged as contract workers. The Respondent prayed for the appeal to be dismissed with costs

on a higher scale.

EVALUATION ON THE MERITS

The court is seized with the determination of one issue, it is the interpretation that ought to be given to the term “contract worker” under Statutory Instrument 109 of 1993 (SI 109/1993). The Appellant argues that the Designated Agent erred and misinterpreted the provision resulting in him arriving at a wrong conclusion that the 1st to 9th Respondents were entitled to be placed on contracts without limit of time. The 1st to 9th Respondents maintain that the Designated Agent’s findings were legally sound and consistent with the literal and purposive interpretation of the provision.

The crux of the dispute therefore lies in the interpretation of the definition of “contract worker” in SI 109/1993, which reads;

“Contract worker means an employee who is engaged for a period of fixed duration or for the performance of a specific task which excludes normal production underground.”

The Appellant contends that the Designated Agent ought to have applied the golden rule of interpretation rather than adopt the purposive approach. It is indeed the correct position of the law that a court ought to adopt the golden rule of statutory interpretation first in any interpretative exercise. The golden rule was applied in Tapedza v ZERA, where the court held

that the plain and ordinary meaning of statutory language must be applied unless it results in absurdity. The Designated agent in this case did initially address the ordinary and literal meaning of the definition provision. He later resorted to taking the purposive approach in order to understand better the intention of the legislature in inserting this particular provision. Having taken this approach he then, correctly so in my view, reach a conclusion that the explicit exclusion of normal underground production workers from the category of contract workers clearly reflected the legislature’s intention. Their intention was to exclude contract employees from work related to normal production underground. By adopting the purposive approach the Designated Agent was following on authorities such as Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) and Mukwereza v Minister of Home Affairs & Anor 2004 (1) ZLR

445. The Appellant’s own interpretation, which sought to include underground workers in the category of fixed-duration contract workers, was clearly inconsistent with the literal and purposive readings of the provision. The Designated Agent’s finding that the 1st to 9th Respondents, having been engaged in normal production underground, could not have been employed as contract workers is therefore legally sound.

The Appellant is however correct that the Respondents have in their heads of argument incorrectly referred to the definition provision as only applying to one category of a contract worker I,e, specific tasks. The correct position is that the provision makes reference to two categories i.e, for employees engaged on fixed term and the second category is for employees engaged for specific tasks. The court however agrees with the Respondents position that the specific mention of “contract workers” excludes underground production workers from this category. It is clear that in this case the Appellant was not contesting before the Designated agent that the employees were engaged in work underground and for a period of 1 year and above. The Appellant argument was designed to include these employees under the first category of contract worker i.e. on fixed term a situation which was clearly not in sync with the purpose of the legislation. This is what led the Designated Agent to look into the mischief behind the legislation. He found as follows;

“Clearly S. I. 109 of 1993 is mearnt to curb against employers who perpetually place employees on temporary employment where work of a permanent nature is available. Work directly linked to production, cannot in my view, be given on fixed term or specific task basis because such shall always be available for as long as production continues. It is in this context S.I. 109 of 1993 was drawn.”

It is therefore clear that the Designated Agent did not err and misdirect himself in this regard. Grounds of appeal numbers 1, 2 and 3 stand to be dismissed.

In regards the 4th ground of appeal Appellant contends that the relief granted by the Designated Agent through a substitution of the Respondents fixed-term contracts with contracts without limit of time was clearly a misdirection on his part. The Appellant has referred to Mutsuta & Anor v Cagar (Pvt) Ltd, where the court stated that remedies for unfair dismissal are limited to reinstatement or damages, and the imposition of permanent contracts is unwarranted. The 1st to 9th Respondents in counter submitted that the Designated Agent acted within his powers to ensure compliance with SI 109/1993. The 1st to 9th Respondents argue that the substitution of contracts was necessary to rectify the violation of the CBA, which prohibits engaging underground production workers as contract workers. The court however agrees with the Appellant that the substitution of fixed term contracts with contracts without limit of time was legally untenable. Remedies for unfair dismissal are governed by established principles, as highlighted in ZESA Holdings Pvt Ltd v Clovegate Elevator Company Pvt Ltd & Anor SC 69-23. The Designated Agent should have confined the remedy to reinstatement without any loss of salary and benefits from the date of unlawful termination with an alternative remedy, in the event that reinstatement was no longer tenable, of damages in lieu of reinstatement. This would leave the option of any alteration of contract terms to be negotiated between the parties. It is after all an accepted principle of law that courts are not at liberty to create contracts on behalf of the parties neither are they to purport to extend or create obligations for the parties on the basis of contracts placed before them. This principle was underlined in Kundayi Magodora vs Care International Supreme Court 24/14. The 4th ground of appeal therefore succeeds.

The last ground of appeal is equally merited. The Designated agent ought to have granted an alternative remedy of damages in lieu of reinstatement in the event that reinstatement is no longer tenable.

The Appellant also argued that the Respondents claim of punitive costs was unjustified and lacked a valid basis. Higher costs could only be awarded where there is clear evidence of mala fides or frivolity. The 1st to 9th Respondents having conceded to this point in oral submissions by their Counsel the claim for higher costs is dismissed.

In the result it is ordered as follows;

The appeal partially succeeds in respect of grounds of appeal numbers 4 and 5.

The appeal is dismissed in respect of the rest of the grounds of appeal.

The award by the Designated Agent is accordingly amended by the deletion of the following words in paragraph 5 “as employees on a contract without limit of time not fixed contracts” and by the insertion of a new paragraph 6 and 7 which shall read as follows;

The Respondent be and is hereby directed to regularize the contracts of the referred employees in accordance with provisions of the relevant Collective Bargaining Agreement with effect from when they were engaged to perform underground duties.

In the event however that reinstatement is no longer tenable the Respondent shall pay to the referred employees damages in lieu of reinstatement, the quantum of which shall be agreed between the parties failing which either party can approach this court for quantification of the damages.

Each party shall bear its own costs.