Giveus Maenzanise v Car Guard

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/410/13
HARARE 28TH MAY & 30th AUGUST, 2013
CASE NO LC/H/270/12
In the matter between:-
JUDGMENT NO LC/H/410/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/410/13

HARARE 28TH MAY & 30th AUGUST, 2013		   CASE NO LC/H/270/12

In the matter between:-

GIVEUS MAENZANISE				Appellant

And

CAR GUARD					Respondent

Before The Honourable G Mhuri, Senior President

For Appellant :	Mr B Makururu (Legal Practitioner)

For Respondent:	Mr S Sadomba (Legal Practitioner)

MHURI, G:

The factual background of this matter is generally common cause.  It is this:-

that Appellant was engaged on a renewable 3 month fixed term contract.  After every 3 months the contract will be renewed.

that upon its termination on 31st July 2011 Appellant had been in Respondent’s employ for 11 continuous years on the same terms and conditions of 3 months fixed term contracts.

that Appellant was given a verbal 5 minutes notice of termination.

Aggrieved by the Respondent’s non-renewal of

his contract, Appellant approached the Designated Agent (D/A) who issued a certificate of no settlement.

The Designated Agent then referred the matter to compulsory arbitration. The subject matter for arbitration was;

alleged unfair dismissal

non payment of notice pay.

The Arbitrator analysed the submissions made by both parties and concluded that Appellant failed to prove that there was legitimate expectation of renewal, the verbal communication of the intention not to renew meant that the contract would be not renewed, that Appellant failed to prove that S. Kamuthu was engaged in his place as he was engaged 3 months prior to the expiration of Appellant’s contract and in a different capacity, that legitimate expectation could not be established on the basis of failure to give reasons for the termination.

Aggrieved by the Arbitrator’s findings and award, Appellant noted this appeal.

It is to be noted that it was not a term of reference to the Arbitrator whether or not the continuous renewing of Appellant’s contract, was casualisation of labour. I therefore shall not dwell on it either.

Section 12B of the Labour Act [Chapter 28:01]. (The Act) deals with Dismissal in particular subsection (3) thereof states:-

“An employee is deemed to have been unfairly dismissed-

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

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee”

(emphasis added)

In terms of the above Section, the onus is on the employee (Appellant) to prove firstly that he had a legitimate expectation of being re-engaged and secondly that another person was engaged in his place see CHIKONYE V PETERHOUSE 1999(2) ZLR 320(S) and

UZ-UCSF COLLABORATIVE RESEARCH PROGRAMME IN WOMEN’S HEALTH V SHAMUYARIRA 2010 (1) ZLR 127 S at 131 A – B

“In relation to subs 3(b), the onus is on the employee to prove firstly, that he had legitimate expectation to be re-engaged and, secondly, that another person was engaged in his stead, that is, to do his work” per Ziyambi J.A.

In casu, as indicated in the first part of this judgment, Appellant was in Respondent’s employ on a 3 month fixed term contract which was being renewed at the expiry of every 3 months and this ran for a continuous, uninterrupted period of 11 years. Eleven uninterrupted years was a very long period in my view. This practice of continuously renewing the fixed term contract stretching 11 years, certainly created a legitimate expectation in Appellant’s mind that the contract will be renewed moreso when it was left until the last 5 minutes to be told the contract was not going to be renewed. On this aspect, I find that the Arbitrator misdirected himself on the facts placed before him when he concluded that Appellant had not proved the legitimate expectation.

The second aspect which an employee (Appellant) has to prove in order for the dismissal to be held unfair, is to show that another person was engaged in his place.

In casu, the submission made by Appellant before the Arbitrator was that S. Kamuthu was engaged in his place. Appellant is not disputing that Kamuthu was engaged 3 months before the termination of his contact. It was not disputed that Appellant’s and Kamuthu’s jobs were different. In that regard I find no misdirection on the part of the Arbitrator when he concluded that Appellant failed to discharge the onus on him.

Appellant having failed to satisfy sub paragraph (ii) of subsection (b) of Section 12B(3) of the Act, the arbitral award cannot be impugned.

Accordingly, the appeal cannot be allowed. It is therefore ordered that it be and is hereby dismissed with costs.

Guni and Guni Legal Practitioners – Appellant’s Legal Practitioners

Gill, Godlonton & Gerrans – Respondent’s Legal Practitioners