Admire Nyabezi & Anor v Varichem Pharmaceuticals

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/663/16
HELD AT HARARE 30 MAY 2016
CASE NO
JUDGMENT NO LC/H/663/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/663/16

HELD AT HARARE 30 MAY 2016				CASE NO LC/H/668/14

& 21 OCTOBER 2016

ADMIRE NYABEZI					1st Appellant

CONSTANCE MUNTANGA				2nd Appellant

VARICHEM PHARMACEUTICALS			Respondent

Before The Honourable G Musariri, Judge

For Appellants		C Muchichwa, Unionist

For Respondent		V Muza, Attorney

MUSARIRI J:

On 12 June 2014 at Harare, arbitrator R Matsikidze issued an arbitration award.  He dismissed appellants’ claims against respondent.  Appellants then appealed to this court against the award.  Respondent opposed the appeal.  The grounds of appeal were four-fold as follows,

“1. The learned arbitrator grossly erred at law when he failed to appreciate that the appellants were permanent employees of the respondent as,

He failed to appreciate a question of law that by continuously reviewing casual contracts, the appellants were deemed by the law to be permanent employees of the respondent.

The learned arbitrator grossly erred and misdirected himself at law when he found that the appellants were from 10 January 2011 to 19 November 2013 on casual contracts when it was clear to him that there was no written contract among the parties which should point to the obvious conclusion that the appellants were on contracts without limit of time which are permanent contracts.

2. The learned arbitrator also grossly erred when he found that the appellants were obliged to accept signing contracts in retrospect and to sign new monthly contracts when it is clear that in terms of the law they were permanent employees of the respondent.

3. The learned arbitrator went on a frolic when he dealt with the lawfulness of the appellants’ refusal to sign contracts, as that was never part of the terms of the reference for the arbitrator.  In any event he erroneously found that such refusal was unlawful.

4. The learned arbitrator then last misdirected himself at law when he did not find that the appellants’ dismissal was unlawful.

Appellants’ statement of claim dated 2 May 2014 is filed of record.  It states that they worked for respondent from October 2009 to February 2011. They worked on monthly contracts which were continuously renewed.  The contracts are also filed of record.  From March 2011 they “were no longer signing any written contracts but remained employees of the respondent to the date of dismissal.  They were verbally dismissed on 19 November 2013 when they refused to sign new monthly contracts.  On that basis they alleged unfair dismissals.  Respondent’s answer dated 11 May 2014 is also filed of record.  It confirmed that appellants worked for them from 2009 to 2011.  They were renewing monthly contracts whenever work was available.  They refused to continue on contract basis in 2011.  Appellants “simply left for greener pastures.”  There was no verbal termination as alleged.  Two (2) years down the line they started claiming unfair dismissal.

On these facts the arbitrator found that the appellants were lawfully dismissed for refusing to sign contracts.  On that basis he dismissed their claims.  I agree with the result but find the arbitrator’s reasoning wanting.  I prefer respondent’s version that appellants absconded in 2011 when they refused to continue working under fixed term contracts.  There is no evidence to counter respondent’s version, that is nothing proves that appellants continued working for respondent up to 2013 as they alleged.  Thus there was no basis or foundation for the claim that they had become permanent employees.   Appellants terminated their employment.  Thus they could not be reinstated or paid damages in lieu of reinstatement.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E