Cargill Zimbabwe (Private) Limited v Elvis Kubvunya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/557/16
HELD AT HARARE 17 JUNE 2016
CASE NO
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/557/16

HELD AT HARARE 17 JUNE 2016				CASE NO LC/H/432/15

& 9 SEPTEMBER 2016

CARGILL ZIMBABWE (PRIVATE) LIMITED			Appellant

ELVIS KUBVUNYA						Respondent

Before The Honourable G Musariri, Judge

For Appellant			N Munetsi, Attorney

For Respondent		Ms L Rufu, Attorney

MUSARIRI J:

On 26 March 2015 at Harare, arbitrator G Kwaramba issued an arbitration award.  He ordered appellant to either reinstate respondent’s employment or pay him damages in lieu of reinstatement.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.

Appellant’s heads of argument raise three (3) issues thus;

“1.1 This appeal raises legal issues pertaining to the manner in which fixed term contracts and  contracts without limit of time lawfully terminate.  It also addresses whether or not there is a legal requirement for which employers who are party to fixed term contracts ought to give notice of termination prior to their effluxion of time.

1.2 The appeal also raises questions of law pertaining to whether or not a payment made in error by an employer amounts to a tacit renewal of a contract of employment on terms and conditions of the prior agreement after the termination of such contract due to effluxion of time.

1.3 The appeal will also address the consequences of reinstatement to a position that an employee previously held under a fixed term contract and whether an employee under such circumstances is entitled to damages, in lieu of employment to a period beyond the duration of the fixed term contract as if the employee was employed under a contract without limit of time.”

Respondent worked for appellant as a maintenance clerk.  A copy of the employment contract is filed of record.  It is a fixed term contract running from 31 January 2013 to 30 April 2013.  According to appellant, respondent was off sick as from 20 February 2013.  At the end of his treatment respondent did not present himself for work.  He merely inquired about his leave pay.  He did not inquire about his salary for May 2013 until he made a report some 12 months later alleging unfair dismissal.  Respondent’s case was that his contract was not terminated.  He further submitted that appellant paid his May 2013 salary thereby renewing his contract.  He also submitted that appellant could not lawfully terminate employment whilst he was on sick leave.

I am persuaded by appellant’s case.  Respondent was employed on a fixed term contract.  Thus unless earlier terminated, such contract automatically ends on its end-date.  This is what happened in casu.  The contract ended on 30 April 2013 that is its end date.  There was no need for appellant to give notice of termination.  The notice clause in the contract applied to termination prior to the end date.  Thus it is not applicable in this case.  The May 2013 salary was paid in error.  Appellant explained that they were slow to update their records hence the making of that payment.  They decided against claiming a refund on grounds of compassion.  Respondent apparently recognised this position as he did not claim anything else besides leave pay until much later.

Respondent sought to bolster his position by reliance on the Collective Bargaining Agreement: Cotton Industry S.I. 150/10.

Its section 19 (2) provides that;

“The employer shall not give notice of termination of contract to an employee whilst such employee is sick.”

As already pointed out above, notice of termination was not necessary and neither was it given in this case.  The contract simply terminated at the end of its fixed term.  Thus no succour or support can be got by respondent from the CBA.

All in all I take the view that the appeal is merited and ought to be allowed.

Wherefore it is ordered that;

The appeal be and is hereby granted;

The arbitration award issued by arbitrator G Kwaramba is set aside; and

Each party shall bear its own costs.

G. MUSARIRI

J U D G E