Zimbabwe Energy Workers Union v Kumbirai Masasire

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/440/2014
HARARE, 10 JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/440/2014

HARARE, 10 JUNE 2014 &			       CASE NO LC/H/603A/2013

18 JULY 2014

In the matter between:

ZIMBABWE ENERGY WORKERS UNION			APPELLANT

Versus

KUMBIRAI MASASIRE						RESPONDENT

Before The Honourable P Muzofa	:	Judge

For the Appellant		T Marume	(Legal Practitioner)

For the Respondent	B Makururu  (Legal Practitioner)

MUZOFA J:

This is an appeal against an arbitration award made in favour of the respondent.

The respondent was engaged by the appellant. The nature of the engagement is in dispute. The appellant alleged that the respondent was engaged as a legal consultant. The respondent alleged he was engaged as an employee. The facts leading to the termination of the engagement are not in dispute. The appellant as an employer and exercising its rights convened a disciplinary hearing against one of its employees. The respondent represented the employee in the proceedings that the respondent had instituted against the said employee.

The appellant attempted to dissuade the respondent not to represent the said employee to no avail. According to the appellant the respondent had a conflict of interest therefore his contract was terminated. The respondent approached the Ministry of Labour with a complaint of an unfair dismissal. Conciliation failed and the matter was referred to an arbitrator.

The arbitrator after considering the matter came to the conclusion that the respondent was an employee of the appellant. At the time the award was made the respondent had secured alternative employment, the arbitrator made an order in the following terms:

“That the respondent be and is hereby ordered to pay to the claimant his salary up to the date he took up employment with Messrs C Mutsahuni, Chikore & Partners. The parties are free to approach this tribunal if they fail to agree on the quantum.”

The grounds of appeal raise the following issues:

Whether the arbitrator erred in finding that an employer-employee relationship existed between the parties.

Whether the relationship was mutually terminated.

Whether the arbitrator erred in ordering that the respondent be paid damages in the absence of an order for reinstatement.

I will consider the issues in turn.

Whether there existed an employer-employee relationship between the parties

The appellant and respondent entered into a verbal agreement. As a result no written contract can be referred to, to ascertain the form of relationship that existed. There is no requirement that all contracts of employment be reduced into writing as per section 12 (1) of the Labour Act (“Act”). The manner in which the parties related therefore can assist the court to determine the form of relationship. One of the tests applicable is the supervision and control test. The court was referred to case law on this aspect including Colonial Mutual Life Assuarance Society  v Macdonald 1931 AD at pages 434 to 435. The court had this to say:

“… the relation of master and servant cannot exist where there is a total absence of the right of supervising and controlling the workman under the contract, in other words unless the master not only has the right to prescribe to the workman what work has to be done, but also the manner in which that work has to be done.”

The court was also referred to the dominant impression test and economic realities test by the respondent.

The appellant submitted that the respondent at the time he rendered services to it he was practising as a legal practitioner with Mutsahuni, Chikore & Partners. The respondent would only provide legal services to the appellant as and when required in relation to its members. He was not on a payroll. He was paid for services rendered. To show that the respondent was not an employee of the appellant, the respondent represented an employee of the appellant in the disciplinary hearing. The respondent submitted that he was employed by the appellant. He was entitled and received a salary of $582-00 accrued leave days and was receiving a transport allowance, housing allowance and a non-pensionable allowance. The appellant provided the tools to him to perform his duties. He handled many labour cases on behalf of the appellant’s members. He did not provide legal advice to the appellant but the appellant’s legal practitioners were Messrs Matsikidze & Mucheche. He represented the said employee in a disciplinary hearing as a representative provided in S I 15/2006. According to the respondent he was an employee of the appellant.

The outline by the respondent of the relationship between the parties does not convince me that there was an employer-employee relationship. I say this for the following reasons. The appellant alleged that his salary was pegged at the rate of ZESA employees. There was no evidence at least of a payslip to confirm that he was salaried. There was therefore no evidence that he accrued leave days and was paid a bonus. A bank statement was produced before the arbitrator. What the bank statement show is that the respondent account was credited by RTGS with $582-46 on 1 October 2012 and also another RTGS credit on 30 October 2012. The bank statement has transactions from 1 August 2012 to 15 December 2012 which was the period of engagement. There is no indication that a salary was credited into his account as the respondent urged this court to believe if indeed the respondent was on a salary and it was paid through the said RTGS there was no explanation why there was no payment for November 2012 assuming that the payment of 1 October was for September. The other evidence that was before the arbitrator were two payment vouchers. The first payment voucher was a payment of $323-00, the description of the payment was “being wages paid to K Masasire assisting legal department – ZESA suspended workers” dated 23 August 2012. Two issues arise from this voucher. If the respondent was an employee why would he be paid for specific services rendered? In this case assisting the appellant’s legal department, I do not think much turns on the issue that the payment was termed wages. The second issue that makes in roads into the respondent’s submissions is that according to the respondent’s supplementary heads of argument he commenced work on 20 August 2012. If he was an employee would he have been paid by 23 August 2012? The only reasonable inference is that when he was engaged, he rendered services that were paid for by 23 August 2012.

The second payment voucher dated 8 December 2012 has a description of Masasire wages. This was at a time the contract between the parties had been terminated. In my view the fact that it was not indicated what the money was for does not bolster the respondent’s case, it does not mean it was a salary.

The events leading to the termination of the contract has evidence of the relationship between the parties. If the appellant had instituted disciplinary proceedings against one of its employees, it was mandated to constitute a disciplinary authority or a disciplinary committee. There is no evidence which of the two was constituted.  According to section 2 of the Labour (National Employment Code of Conduct) Regulations 15/2006 under which the respondent claimed he represented the employee “disciplinary committee means a committee set up at a workplace/establishment composed of employer and employee representatives to preside over and decide over disciplinary cases and/or worker grievances.”

If the respondent was in the disciplinary proceedings in terms of the said regulations, the appellant was the one that would have constituted the committee invariably the respondent would have been part of the decision making body as in the disciplinary committee. However evidence from the appellant was that the appellant did not appoint the respondent as such. If for a moment going by the respondent’s explanation that one Mr Sibanda gave him permission to represent the employee there was no evidence to confirm this. Clearly it was to represent him in his professional capacity as a lawyer to defend the employee and not as a worker representative as defined in the regulations. From the events of the disciplinary hearing clearly the respondent represented the said employee outside the mandate of the appellant.

In paragraph 8 of his supplementary heads of argument he stated:

“indeed the claimant worked with C Mutsahuni Chikore & Partners and he left when he was engaged by the respondent and again went back to C Mutsahuni Chikore & Partners this year. At any event, the fact that the claimant was employed somewhere (sic) does not discredit him that he was employed by the respondent and was its employee.”

In my mind these submissions confirm that the respondent at all relevant times was employed by Mutsahuni Chikore & Partners. That invariably precluded him from rendering full time services to the appellant as he indicated I believe the appellant’s version that the appellant served it as and when required. The respondent was not an employee as envisaged by the Labour Act.

Having made the above finding there is no need to determine on the other two grounds of appeal. Accordingly the following order is made:

The appeal be and is hereby upheld.

No order as to costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Musoni Law Chambers, respondent’s legal practitioners