GARWE JA: This is an appeal against the decision of the Labour Court
confirming a determination by an arbitrator that there existed an
employer/employee relationship between the appellant and the respondent and
awarding damages to the respondent for unlawful termination of the contract of
employment.
Although in its notice of appeal the appellant has stated a number of
grounds of appeal it attacks the decision of the Labour Court on two bases. The
first is that the court a quo misdirected itself in coming to the conclusion
that a contract of employment existed between the two parties and the second is
that the court a quo erred in confirming the award of damages made by the
arbitrator.
Although inelegantly worded, the first and second grounds of appeal
raise one issue. That issue is whether the court a quo misdirected itself
in coming to the conclusion that, on the facts, the respondent was an employee
of the appellant. I therefore consider that the issue is not simply one
of fact as suggested by the respondent and that the appeal is properly before
this Court.
The facts of this case are largely common cause. There is no need
to restate them in any detail. The respondent was initially employed by
the appellant on fixed term contracts until September 2007. It is common
cause after this period she continued to render services to the
appellant. Her employment was extended on several occasions until June
2009 when it was terminated. At the time of termination she had been on a
monthly salary of US$1 500 and was required to work five (5) days per week and
eight (8) hours per day. The respondent was also required to carry out
the functions of office co-ordinator and programmer and was also required to
report on her activities to the regional office based in South Africa.
On a careful consideration of these and other facts I agree that the
court a quo did not misdirect itself in coming to the conclusion that the
respondent was an employee of the appellant. That ground of appeal must
fail.
The second issue for determination is whether or not the court a quo
misdirected itself in confirming the award made by the arbitrator on the
quantum of damages due to the respondent. The record shows that there was
no evidence upon which the arbitrator based his award other than an
unsubstantiated statement of claim by the respondent. The Labour Court
accepted the claim on the basis that the appellant had not opposed it.
There can be no doubt that the Labour Court fell into error in coming to
this conclusion as it is settled law that damages in these circumstances must
be properly proved by the party seeking the same. Indeed, Mr Zinyengere for the
respondent did concede that both the arbitrator and the court a quo had erred
in this respect.
Accordingly, this ground of appeal must succeed.
In view of the fact that there is need for the quantum of damages to be
properly proved, the issue ought to be remitted to the court a quo for
determination after evidence has been adduced.
On the issue of costs it seems to me that since the appellant has only
been partially successful, each party should be made to meet its own costs.
Accordingly, it is ordered as follows:
1. The appeal succeeds to the extent that the award of
damages be and is hereby set aside.
2. The matter is remitted to the court a quo for the
quantification of damages to be done after evidence has been adduced.
3. Each party is to pay its own costs.
OMERJEE AJA: I agree
GOWORA AJA: I agree
Coghlan Welsh & Guest, applicant's legal practitioners
Mutumbwa, Mugabe & Partners, respondent's legal practitioners
