Cleopatra Mhariwa v Karanda Mission Hospital & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/89/2020
HARARE, 18 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO. LC/H/89/2020

HARARE, 18 FEBRUARY, 2020			          CASE NO. LC/H/LRA/249/19

AND 22 MAY, 2020

In the matter between:

CLEOPATRA MHARIWA							APPLICANT

Versus

KARANDA MISSION HOSPITAL					1ST RESPONDENT

PATIENCE WARIKANDA							2ND RESPONDENT

Before The Honourable Kachambwa J;

For Applicant:				In Person

For 1st Respondent:			Kantor & Immerman Legal Practitioners

For 2nd Respondent:			Chivoredzingirai Group of Lawyers

KACHAMBWA J:

This is an application by a designated agent, for the confirmation of the agent’s ruling. The agent ruled in favour of the employee in a dispute over termination of contract of employment.

The facts of the matter are that the employee (2nd respondent) was employed on a clearly worded fixed term contract. The contract says that it is a four months contract that is renewable on availability of funds or on performance of the employee. It is renewable at the discretion, of the employer. It also mentioned that it was the responsibility of the employee to check with the employer at the end of each year to

see if the contract was to be renewed. The first contract was expiring at the end of August 2015. It was signed on the 23rd of June 2015 & commenced on the 19th May 2015. This is the only signed contract.

The employee continued in employment up to September 2018. She was on leave from the 3rd of September 2018 to the 11th of October 2018. When she came back from leave is when she was told that her contract had expired on the 31st August 2018. She was paid the salary for September 2018. Of this the employer claimed that these were terminal benefits.

From the above facts the applicant ruled that the employee’s contract had become a contract without limit of time. Therefore the employer was ordered to reinstate without loss of salary and benefits or pay twelve (12) months’ salary in lieu of reinstatement.

The application for confirmation of ruling was opposed by the employer and supported by the employee.

The law on continued employment without signing a new fixed term agreement has fairly been exhaustively ventilated. The same applies for the termination of fixed term contracts. These cases were profusely availed to the applicant. The applicant did not explain how they do not apply to this case. To that extent we are not able to support his ruling since it is against without explanation/differentiation/distinction.

The law on continued employment without signing a new contract has been explained in a string of cases such as Gumbo v Air Zimbabwe 200 (2) ZLR 126 where the court said that;

“There is a presumption that when parties continue the employer employee relationship beyond the contractual period without agreeing on new terms, there is a tacit relocation of the expired contract on the same terms for the same duration”.

Quite clearly the second respondent had to show that the presumption no longer applied. This does not seem to have been done. The first respondent, the employer, seemed to have been alive to the problem of parties not coming to the table for renewal. Consequently it placed a duty on the employee to ask about renewal! The employee did not do this, apparently. This provision was for her benefit and yet she was not diligent on it.

It is common cause that the employer paid the salary for September. There is no

evidence that that payment was terminal benefits. The employer was being dishonest in

raising that defence. This together with the leave that ran into October can only reflect

a renewal of the fixed term contract on the same terms. Accordingly, the first

respondent must be held to fulfill that contract failing which it must pay salaries and

benefits for the remainder of the contract. This point has been adequately said in

precedent cases such as Zimbabwe Revenue Authority v Chester Mudzimaona SC 04/18

where the,

“The appellant submitted that based on the principles of law that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract. This is the correct position. Damages of unlawful termination in relation to an employee who was on a fixed term contract ought to be calculated in relation to the unexpired period of the contract”.

In the result the existence of a permanent contract has to be demonstrated unequivocally. Such is not the case. The court cannot make a new contract for the parties. There was an extension of the fixed contract on the same terms. In that case the contract was expiring at the end of December 2018. The employee therefore is entitled to be paid the salary and benefits for the remaining three months.

In view of the above position the application cannot be granted. The first respondent’s argument that the second respondent could, at best, be compensated for the remaining three months is accepted. The application cannot be granted in its entirety. It is accepted that there was breach of contract and therefore wrongful termination. However the contract terminated is not as per the applicant’s findings. The damages are equally not as per applicant’s findings. The employee does not lose her case as such. It is necessary to award her accordingly. It is held that;

1.	The application is not confirmed.

2.	The parties are held to have been in a fixed contract of four months expiring at the end of December 2018.

3.	The first respondent be and is hereby ordered to pay salaries and benefits for the remaining three (3) months of the contract, the quantum of which shall be determined between the parties failing which either party may approach the court for quantification.

4.	The first respondent shall pay cost of suit.

Kantor & Immerman 	– 	1st Respondent’s Legal Practitioners

Chivoredzingirai Group of Lawyers - 2nd Respondent’s Legal Practitioners