Analisa Nhende v E-Mali (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/179/16
HELD AT HARARE ON 23rd NOVEMBER, 2015
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/179/16

HELD AT HARARE ON 23rd NOVEMBER, 2015            CASE NO. LC/H/464/15

AND 18TH MARCH, 2016

In the matter between:-

ANALISA NHENDE							    Appellant

And

E-MALI (PRIVATE) LIMITED						    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Ms H.S. Tsara (Legal Practitioner)

For Respondent	:	Mr Barry-Gerson (Managing Director)

MHURI J.

Appellant’s prayer in her claim before the Arbitrator was that since she was then employed on a contract without limit of time, she was entitled to three months’ notice of $2 700,00.

The term of reference to the Arbitrator which the Arbitrator considered was –

“whether or not claimant had a legitimate expectation that her contract of employment would be renewed for a further period of 6 months.

If so, the remedy thereof.”

After considering the submissions (written and oral) by both parties, the Arbitrator dismissed the Appellant’s claim for lack of merit.

This award aggrieved Appellant hence this appeal.

It is common cause that Appellant was engaged by Respondent on a six (6) months fixed term contract running from 1st February 2014 to 31 July 2014.  This was a written contract.  It is common cause that at the expiry of this contract no other written contract was entered into by the parties.

It is also common cause that Appellant continued rendering her services despite not signing a new contract with Respondent, until October 2014 when Respondent terminated the contract.

It is as a result of the termination that Appellant averred that she had a legitimate expectation that the contract would be renewed, she was then on a contract without limit of time and was therefore entitled to three (3) months’ notice.

Placed before the Arbitrator for consideration was the parties contract of employment.  Clear from the contract was a condition to the effect that,

“The renewal of this fixed term contract is at the absolute discretion of the employer and the employee accepts that she has no legitimate expectation of renewal, re-engagement or promise of future permanent employment.”

Also clear from the last page of this contract is Appellant’s confirmation that she read and fully understood each and every clause of the contract and agreed to be bound by each and every one of the clauses.

Considering the above, one wonders why Appellant entertained in her mind that she had a legitimate expectation that the contract would be renewed.  The contract had never been renewed before.  The Arbitrator correctly applied the law as stated in the case of –

POSTS AND TELECOMMUNICATION CORPORATION

vs

EMPLOYEES WORKERS COMMITTEE 1998 (1) ZLR 444 (H)

Section 12 B subsection (3)(b) of the Labour Act [Chapter 28:01] provides:-

“An employee is deemed to have been unfairly dismissed –

………………………………

If, on termination of an employment of fixed duration , the employee –

had a legitimate expectation of being re-engaged; and

and another person was engaged instead of the employee.”

Appellant did not show or prove that another person was engaged in her stead.  Therefore the issue of legitimate expectation could not arise.

See the case of

UNIVERSITY OF ZIMBABWE – UCSF COLLABORATIVE PROGRAMME IN WOMEN’S HEALTH

vs

SHAMUYARIRA 2010 (1) ZLR 127 (S)

in which the remarks by ZIYAMBI JA at page 131 A-B aptly apply to this case.

I find that the Arbitrator’s finding on this issue is beyond reproach.

Appellant’s claim that she was entitled to three (3) months’ notice, was based on the notion that upon expiry of the contract on the 31st July she did not sign another contract, she was then on a contract without limit of time.  The Arbitrator rightly rejected this claim.  He relied, correctly in my view on the case of –

GUMBO vs AIR ZIMBABWE 2000 (2) ZLR 126

The continuation of the contract of employment meant that it was a continuation of the fixed term contract on the same terms and conditions.  It did not in any way mean that she had become a permanent employee.

See also the cases of

ROBERT KAZEMBE

vs

ADULT LITERACY ORGANISATION SC 173/94

and

KUNDAI MAGODORA & OTHERS

vs

CARE INTERNATIONAL ZIMBABWE SC 24/14

A judgment by PATEL JA in which the same argument was considered and thrown out by the Supreme Court.

It was one thing for Appellant to claim payment for the unexpired period of the contract and another to claim notice for the termination.  Appellant did not claim the earlier but the later and the Arbitrator was correct in rejecting it as the claim was based on the misconceived idea that she was a permanent employee.  I find no legal basis to set aside his award.

Consequently, the appeal is dismissed as it is devoid of any merit.

Tsara & Associates – Appellant’s legal practitioners