Glen Norah High School Development Association v Arthur Zaza & 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/309/13
HELD AT HARARE 1ST OCTOBER 2012
CASE NO
JUDGMENT NO LC/H/309/13
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/309/13

HELD AT HARARE 1ST OCTOBER 2012		    CASE NO LC/H/50/11

GLEN NORAH HIGH 2						Appellant

SCHOOL DEVELOPMENT ASSOCIATION

ARTHUR ZAZA & 5 OTHERS					Respondents

Before The Honourable G Musariri, President

For Appellant		Ms O Nyamanhindi, Attorney

For Respondent		Mr B Ngundu, Unionist

MUSARIRI, G:

On 20th December 2010 the Honourable P Shawatu made an arbitration award.  In terms thereof he ordered Appellant to reinstate Respondents’ employment or alternatively to pay them damages for loss of employment.  Appellant then appealed to this Court against the award.

The heart of Appellant’s case was captured in their Heads Of Argument as follows,

5.1	Respondents were employed by Appellant on a fixed-term basis.  This can be described as a contract of employment which stipulates the period of employment.  Respondents  were well aware that these contracts were in operation for three months only and that they would terminate automatically upon effluxion of time.

In Chikonye and Anor v Peter House 1992 ZLR 329 (SC) the Court upheld the termination of employment of two teachers without ministerial approval when their fixed term contracts came to an end…

5.2	Likewise, in this case, Respondents cannot claim to have been unfairly dismissed.  Respondents cannot claim any ‘notice pay’ because notice is not a requirement under fixed term contract.”

Respondents opposed the appeal.  In arguments before this Court, it was common cause that the parties entered into some fixed term contract until February 2010.  However Respondents had worked continuously for Appellant for periods ranging from 7 months to 16 years.

These admissions led to the Arbitrator’s conclusion thus,

“With the above principle in mind even if the Respondent in this present matter, maintains that the Complainants were on fixed term contracts of employment then it is clear that Respondent would be guilty of casualising or contractualising (sic) labour because the period of service rendered by the Complainants ranges from 7 months to sixteen years of continuous service.

Basing on the above assessment the Respondents has a case to answer.  The Complainants were permanent employees supposed to be terminated as permanent employees.”

I consider that the Arbitrator fell into error.  Both the common law and the Labour Act, Chapter 28:01 (hereafter called the Act), recognise fixed term contracts.  Section 12 (2) of the Act provides that,

“(2)	An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars –

–

The period of time, if limited, for which the employee is engaged;”

(The underlining for emphasis is mine.)

The underlined part of the provision is a recognition of fixed-term contracts of employment.  Accordingly it was wrong of the Arbitrator to ignore this provision by invoking the spectre of casualization of labour.  Whilst I agree that casualization of labour is undesirable one cannot ignore explicit provision of the Act.  In fact the Act sought to discourage casualisation but only in respect of “casual work or seasonal work” as provided under the proviso to subsection (3).  Such work is distinguishable from the contracts in casu.  It therefore follows that the Arbitrator did not have a valid basis for making the award that he made.

Wherefore it is ordered that,

The arbitration award dated 20th December 2010 made by the Honourable P Shawatu is hereby set aside; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT