ZB Financial Holdings v Silence Takavarasha and 4 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/718/13
HELD AT HARARE 7th NOVEMBER, 2013
CASE NO LC/H/359/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/718/13

HELD AT HARARE 7th NOVEMBER, 2013	    CASE NO LC/H/359/13

AND 17th JANUARY, 2014

In the matter between:-

ZB FINANCIAL HOLDINGS						Appellant

And

SILENCE TAKAVARASHA AND 4 OTHERS				Respondents

Before The Honourable Justice B.T. Chivizhe,

The Honourable Justice L.M. Murasi,

For Appellant	:	Mr. S. Sadomba

For Respondents 	:	Mr. T. Bhatasara

MURASI, J.

Appellant is disgruntled by the ruling made by the Arbitrator.  The operative part of the arbitral award on page 18 of the record reads:

“In light of these findings, I am of the strongest conviction that the Respondent should be deemed, as it is hereby ruled, that it was at all material times the employer of the claimants in casu”

Appellant states that the Arbitrator misdirected himself on the following issues which are points of appeal:

That the arbitrator misdirected himself in making a finding that the Respondents had entered into contracts with ZB Financial Holdings which factual finding amounts to a misdirection on the law.

That the Arbitrator did not consider the documentary evidence which was produced by the parties showing the various contracts signed by the Respondents.

That the Arbitrator relied solely on the evidence of Cleopas Bhasvi which was uncorroborated.

That the Arbitrator erred in finding that Respondents fell under the National Employment Council for the Banking Undertaking instead of the National Employment Council for the Commercial Sectors.

The brief facts are that the Respondents were employed by Appellant in various capacities on fixed contracts which were periodically renewed.

Respondents largely abided by the submissions made before the Arbitrator with additions made in the Heads of Argument.  Respondents argued that the grounds relied upon by Appellant do not amount to grounds on points of law.  The Court is of the view that the issue whether the Respondents were employed by the parent company or the subsidiary companies amounts to a point of law.  It is for this reason that the court allowed submissions be made by Appellant in this regard.

The first issue to be determined is whether the Respondents were employed by the parent company or the subsidiary companies.

The Court sifted through the voluminous documents submitted by the parties before the Arbitrator.  A close look at the contracts signed by the Respondents shows the following pattern.  The initial contracts were entered into before the coming into existence of ZB Associated Services (Pvt) Ltd.  ZB Associated Services (Pvt) Ltd was infact incorporated in 2009 and commenced

operations the following year.  This therefore means that there should be a cut-off point showing a differentiation between claims made before and after its incorporation.  The following are but a few observations made by the Court on the individual contracts;

Contract between Paridzai Bundo and ZB Bank on ZB Financial Holdings letterhead dated 18 March 2008 – page 204 of the record.

Contract between Maneto Soko and ZB Financial Holdings dated 28 November, 2008 – page 202 of the record.

Contract between Silence Takavarasha and ZB Financial Holdings dated 1 December, 2008 – page 198 of the record.

Contract between Regis Chabata and ZB Bank on ZB Financial Holdings letterhead dated 16 July, 2009 – page 190 of the record.

Contract between Maneto Soko and ZB Associated Services (Pvt) Ltd on ZB Financial Holdings letterhead dated 23 December, 2009 – page 182 of the record.

These are just a few examples of the contracts that were signed by the Respondents.  The contracts show that even though they were on a ZB Financial Holdings letterhead, they stipulated the particular entity that was entering into the contract with the individual concerned.  A look at the award made by the Arbitrator shows that this was lost to him as he did not consider the individual entities entering into these contracts.  The Arbitrator made a blanket finding that since the Appellant’s letterhead was used, then it must have been the Appellant that entered into that contract.  The evidence clearly shows a different scenario.

The second issue pertains to the oral evidence that was relied upon by the Arbitrator. Only Cleopas Bhasvi gave evidence.  The individual contracts show that they were signed on different dates with different entities.  This means that each individual Respondent entered into that contract in his/her individual capacity with different contractual obligations.  This further means that Cleopas Bhasvi could not have given evidence on behalf of the other Respondents as he was not privy to the contracts signed by those individuals with the respective entities.  This in my view amounted to a misdirection on the part of the Arbitrator.

The Arbitrator also sought to rely on precedent.  However, the precedents that he quoted were not supported by the documentary evidence.  It became and was the Arbitrator’s duty to clearly analyse the documentary evidence, which he did not.

It is trite that an appellate court will not interfere with a decision of a lower court unless there is a gross misdirection on the part of the lower court.  (See Aidan Paul Beckford Vs Elizabeth Anne Beckford SC 25/09).  In this case the Arbitrator did not do justice to the case by not properly considering the documentary evidence.  I would therefore allow the first three grounds of appeal.  It will not be necessary to deal with the rest of the grounds of appeal.

Having noted that the Arbitrator did not properly consider the evidence produced before him the interests of justice require that the matter be properly ventilated so that all the evidence is considered and a proper decision arrived at.

In the result, it is ordered as follows;

The arbitral award dated 30 April, 2013 be and is hereby set aside.

The Senior Labour Officer to place this matter before a different arbitrator within 30 days of this order.

There is no order as to costs.

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MURASI J.

.....................		I agree

CHIVIZHE J.

Gill, Godlonton and Gerrans– Appellant’s Legal Practitioners

Mupanga Bhatasara Attorneys – Respondents’ representatives.