G. Chayambuka & 52 Others v Lutheran Development Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/799/2016
HARARE 15 NOVEMBER 2016
CASE NO. LC/H/409/16
---------




IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/799/2016

HARARE 15 NOVEMBER 2016				   CASE NO. LC/H/409/16

AND 16 DECEMBER 2016

G. CHAYAMBUKA & 52 OTHERS				Appellants

LUTHERAN DEVELOPMENT SERVICES			Respondent

Before The Honourable G. Musariri, Judge:

For Appellants		Mr S. Dube, Unionist

For Respondent		Mr G. Makings, Attorney

MUSARIRI, J:

On 22nd June 2015 at Harare Arbitrator N.K. Nhimba issued an arbitration award.  He dismissed Appellants complaints about the non-renewal of their contracts by Respondent, Appellants then appealed to this Court.  Respondent opposed the appeal.

Appellants worked for Respondent in various capacities and at different stations in Zimbabwe. They were on fixed term contracts.  Their contracts lapsed on expiry of the fixed terms during the period between July and December 2013.  Upon the expiry, Respondent did not renew the contracts.  Appellants were aggrieved by the non-renewal.  They filed a complaint with the relevant NEC.  In due course the matter was referred to arbitration resulting the aforesaid award by Arbitrator Nhimba.

Appellant averred that the Arbitrator misdirected himself in interpreting and applying section 12B (3) of the Labour Act Chapter 28:01 (hereafter called the Act). The section reads as follows,

“An employee is unfairly dismissed –

…

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

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

Appellants stated that Respondent hired a security company to replace 18 security guards.  They argued that these were their replacements in circumstances where they had legitimate expectation of being re-hired.  Respondent countered that the replacement contemplated by the Act is replacement by a natural person.  It does not cover the present case where a private contractor was engaged to provide security services.  The Arbitrator opined as follows,

“… the Respondent engaged a private security company to provide security services to the Respondent after Applicants’ contracts expired which therefore means the Applicants were not replaced by other employees,”

I agree with the Arbitrator’s reasoning.  The replacement contemplated by the Act entails the addition of a new employee on the payroll.  It does not cover the hiring of a private contractor to provide similar services.

I turn now to the other Applicants.  They produced 2 advertisements placed by Respondent in a national newspaper.  One was for the position of 2 Finance Clerks.  The other was for the position of a Micro-finance Officer. The adverts set the job summaries.  Applicants argued that the summaries were similar to some of their jobs.  Thus they concluded that the new recruits were hired to replace them.  Respondent countered firstly by noting the timing.  Both adverts called for applications in March 2014.  The process involved interviews.  This would likely take us to April, at the earliest, for recruitment.  In these circumstances Respondent argued that this could not be replacement as contemplated by the Act.  The wording of the Act talks of replacement upon termination.  In this matter the adverts came three (3) months after termination.  Thus they do not qualify as replacements under the Act.

Respondent also noted that the adverts cover three (3) jobs at most.  Yet the remaining employees (excluding the security guards) number thirty-five (35).  The adverts cannot be used as evidence of replacement of the entire 35 employees.

I agree with both the Arbitrator and the Respondent.  The adverts cannot be used as evidence that Respondent engaged replacement employees for the 35 whose contracts expired.  The adverts do not tie in with section 12B (3) in terms of time.  They also do not account for the numbers of the employees involved.  In the circumstances I conclude that the appeal lacks merit and ought to be dismissed.

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.