Hinge Enterprises (Pvt) Ltd v Happiness Samuriwo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/516/16
HELD HARARE 4 JULY 2016
CASE NO
JUDGMENT NO LC/H/516/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/516/16

HELD HARARE 4 JULY 2016					CASE NO LC/H/APP/381/16

& 9 SEPTEMBER 2016

In the matter between:

HINGE ENTERPRISES (PVT) LTD			Applicant

And

HAPPINESS SAMURIWO				Respondent

Before The Honourable Hove, J

For Applicant			M Mnemo (Legal Practitioner)

Respondent			In person

HOVE J:

This is an application in terms of section 89 (2) (c) of the Labour Act [Chapter 28:01].  The application prays for the variation of an award by an arbitrator.

The facts of the matter are that the respondent was employed by the applicant as a Human Resources and Administration Officer on 6 July 2015.  The contract of employment provided for a probationary period of 3 months.

On 16 July 2015, during the first month of the probation, the applicant was given 24 hours notice of intention to terminate the contract of employment with effect from 17 July 2015.

The arbitrator found that the dismissal was unlawful and he awarded the respondent three months damages for what he termed the unlawful termination of her employment  - less what she had been paid.

The applicant seeks that the amount payable be reduced to an amount equivalent to 2 weeks salary.

The issue in relation to termination of contract during a probationary period is an issue that is fairly settled.

A probationary contract of employment is like a fixed term contract which can be terminated at any time before the expiration of the probationary period.  What this means is that the employer (and the employee) can terminate the contract of employment without even having to give reasons for such termination.  An employer is within its rights to terminate as did the applicant in casu.

This is so by virtue of the fact that an employee on probation is like an employee on a fixed term contract.  If the employer finds him unsatisfactory, he may be dismissed on notice.  He may be dismissed on notice without the employer having to proceed under the Labour legislation or an employment code of conduct.

In the case of Madawo v Interfresh 2000 (1) ZLR 660.

The learned judge stated that probation does not guarantee for the employee employment for the full period of the probation as initially agreed between the parties.

This is so because probation is the action or process of testing or putting to the proof… the testing or trial of a person’s conduct, character or moral qualification, for some position or office.  So either of the parties, after testing can decide that they are not interested to pursue the relationship and opt out without necessarily being said to have acted unlawfully.

The court said in the Madawo case (supra) that an employee on probation is like an employee on a fixed term contract.  If the employer finds him unsatisfactory he may be dismissed on notice without the employer having to proceed under labour legislation or an employment code of conduct.

The issue of similarity to a fixed term contract means that when an employer decides to terminate before the expiry of the probation period, he can do so subject to them paying for the unexpired term of the contract.

What is payable to the respondent in this case is the amount that is payable for the unexpired term of the contract.

In this regard, the arbitrator was correct, though he came to that conclusion for different and in my opinion wrong reasons.

The amendment No 5/2015 to the Labour Act [Chapter 28:01] did not in any way affect the position in law of terminating contracts of a fixed period like the probationary contracts of employment.

There is no basis therefore to grant the application to vary an amount that is sound in law.

In the result, the application to vary the arbitral award is dismissed with costs.

Dururu & Associates, applicant’s legal practitioners