Carthert Mutandwa V Premier Soccer League

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/810/2014
HELD AT HARARE ON 12 NOVEMBER 2014
CASE NO LC/H/810/2014
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/810/2014

HELD AT HARARE ON 12 NOVEMBER 2014	  CASE NO LC/H/662/2014

& 5 DECEMBER 2014

Before Hon. L.M. Murasi

In the matter between:

CARTHBERT MUTANDWA						APPELLANT

Versus

PREMIER SOCCER LEAGUE						RESPONDENT

For the Appellant		T Marume	(Legal Practitioner)

For the Respondent	K Gama   (Legal Practitioner)

MURASI J:

The Appellant was employed as an Executive Secretary by the Respondent through a letter of appointment dated 28 February 2009. This contract of employment was for a fixed period terminating on 28 February 2014. In a letter dated 15 February 2012, the Appellant was appointed to the post of Finance and Administration Manager. In a letter dated 13 November 2013 the Respondent advised the Appellant that it desired to terminate the employment contract with immediate effect but undertook to pay all contractual dues for the remaining period of the contract. The Appellant took his matter to the Labour Office and the matter was subsequently referred to arbitration. The Arbitrator found in favour of the Respondent. The Appellant has appealed to this Court against the decision of the Arbitrator.

The Appellant’s grounds of appeal can be summarised as follows:

That the Arbitrator erred at law in holding that the Appellant’s contract was lawfully terminated and that there was no unfair dismissal in view of the fact that the Appellant’s contract was without limit of time and was not procedurally and substantively terminated in terms of the labour laws.

That the Arbitrator erred at law in holding that the argument to do with permanent employment infringed on the terms of reference which were before him. The Arbitrator misdirected himself on a point of law in failing to realise that the argument fell under the term whether or not the Appellant was unfairly dismissed and was not an introduction of new terms.

The Arbitrator misdirected himself both on the law and the facts in making a finding that the Appellant had no legitimate expectation of renewal and that no person was engaged in his position, in that one T Farawadya was assigned to do his job.

The Appellant’s Counsel stated that he abided by the Heads of Argument filed of record. The Appellant’s Counsel submitted that the Arbitrator had failed to appreciate that the second letter of appointment novated the initial contract with the result being that the Appellant was now on a contract without limit of time. This therefore meant, it was argued, that the termination of the employment was supposed to be as prescribed in section 12 of the Labour Act [Cap 28:01]. It was further stated that such a contract could not be summarily terminated. As regards the second ground of appeal, it was argued on behalf of the Appellant that the Arbitrator had erred in finding that the particular head was not part of the Terms of Reference when the issues to be determined were interlinked. The Appellant’s Counsel stated that this had the effect of “shutting the door” on the Appellant. As regards the third ground of appeal, it was submitted that the Arbitrator had erred in finding that the Appellant had no legitimate expectation in being re-employed. It was argued that there was evidence of the employment of one T Farawadya to this effect.

The Respondent’s Counsel submitted that he also abided by the Heads of Argument. It was argued on behalf of the Respondent that the Appellant could not blow “hot and cold.” The Respondent’s Counsel submitted that the Appellant’s letter to the Labour Office was based on the termination of the contract which was due to expire on 28 February 2014. It was further submitted that the Appellant never raised the issue of the contract being without limit of time. It was stated that these issues were first raised before the Arbitrator and not with the Labour Office. The Respondent’s Counsel further argued that the letter of 15 February 2012 clearly stated that the terms and conditions of the previous contract remained intact and this therefore meant that there was no novation. As far as legitimate expectation was concerned, it was stated that the Respondent’s Chief Executive Officer had submitted an affidavit showing that no other person had been employed in the Appellant’s stead. It was submitted that it was the Appellant’s mere speculation, that the Respondent could not operate without appointing someone to the Appellant’s vacant post.

Precedent has dictated that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of gross misdirection. (See Innscor Africa (Pvt) Ltd v Letron Chimoto S 6/2012).

Having stated the above, the Court will consider the Appellant’s first ground of appeal. The Appellant alleges that his contract was one without limit of time and was therefore supposed to be procedurally and substantively terminated in terms of the labour laws. Was this a fixed term contract or a contract without limit of time? The Arbitrator makes the following finding on this point:

“The statement serves to demonstrate that the initial contract was not replaced per se but was varied. It is noteworthy that the variation was by consent of the parties. That is signified by the presence of both parties’ signatures on the succeeding contract. By signing Annexure ‘B’, the parties were not agreeing to entering into a new contract of employment but instead to varying particular aspects thereof with a view to suit the Claimant’s new roles and responsibilities. If my interpretation of paragraph 2 of Annexure ‘B’ is correct, which I believe is, it follows that, the contract was not without duration.”

The Arbitrator found that the employment contract was for a fixed duration. This would mean that the procedure for its termination as advocated by the Appellant would fall away. Was there a misdirection on the part of the Arbitrator? I think not. Apart from the documents quoted above by the Arbitrator, there is evidence from the Appellant’s letter to the Labour Office. The nature of his complaint was that the Respondent had unlawfully terminated the “fixed term contract. The Appellant did not any time aver that this was a contract without limit of time. I associate myself with the wise words of NDOU J in Jona Ndalama v Chief Superintendent Happymore Sigauke & Commissioner-General HB 153-11 where he stated:

“There has to be something grossly irregular in the proceedings to warrant such interference.”

The Court has not found anything irregular in the finding by the Arbitrator and this ground of appeal must fail.

In the second ground of appeal, the Appellant alleges that the Arbitrator refused to entertain the issue of permanent employment as part of the Terms of Reference. The Court is unable to grasp the sense in this ground of appeal. It is clear that the Terms of Reference referred to the Arbitrator were agreed upon by the parties. The record shows that the Appellant had attempted to put some of the Terms of Reference in the alternative. The Respondent objected to this and raised a point in limine. The Arbitrator upheld the point in limine and stated that he could not vary these Terms of Reference. It would appear, as suggested by the Respondent’s Counsel, that the Appellant intended to “smuggle” this head into hearing. The Court has also observed from the record that, even if the Arbitrator dismissed this head, he went on to deal with the issue and decided that this was a fixed term contract. This ground of appeal must also fail.

The third ground of appeal shows the quandary in which the Appellant finds himself in the appeal. After alleging that his contract was without limit of time, he reverts to the fixed term contract and avers that he had a legitimate expectation to be re-engaged. The Court will not dwell on the apparent confusion in the attempted fishing expedition but will consider whether the Appellant had any legitimate expectation. The way the ground of appeal is formulated is quite interesting. The Appellant couches it in the following manner:

“… how the legitimate expectation was founded on reasonable grounds and that one T Farawadya was assigned to do his job.”

The Appellant does not use the word “engaged.” I also refer to the Respondent’s affidavit by its Chief Executive Officer. The Appellant does not dispute the contents in that affidavit and it is trite that what is not disputed in evidence filed is taken to be admitted. I will revert to the issue of T Farawadya. The Appellant was unable to show when T Farawadya was engaged. It was required of the Appellant to prove to the Arbitrator that the Respondent had indeed engaged someone else in his stead. The general principle governing the issue of onus is that he who seeks a remedy must prove the grounds therefore. This was stated in Astra Industries Limited v Peter Chamburuka S-27-12:

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.”

It is my considered view that the Appellant failed in this regard to place the required evidence before the Arbitrator.

In conclusion, the Court finds that the appeal is devoid of merit and is accordingly dismissed with costs.

Matsikidze & Mucheche, appellant’s legal practitioners

Gama & Partners, respondent’s legal practitioners