Jeremiah Maride v Technosphere Energy Services (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/404/2016
HARARE, 9 MAY 2016 &
CASE NO LC/H/603/2014
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/404/2016

HARARE, 9 MAY 2016 &					         CASE NO LC/H/603/2014

23 JUNE 2016

In the matter between

JEREMIAH MARIDE							APPELLANT

Versus

TECHNOSPHERE ENERGY SERVICES				RESPONDENT

(PVT) LTD

Before the Honourable E T Muchawa J

For the Appellant	T J Mafongoya  (Legal Practitioner)

For the Respondent     J Makings (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant was employed by the respondent on monthly fixed term contracts as a rigger for a period spanning two years. The last such contract expired on 31 August 2010. This was then replaced with a contract running from the 1 to 5 September 2010. This last contract was not renewed.

The respondent employed one Herbert Chari as a rigger on a contract running from 6 September to 30 September 2010.

A complaint of an alleged unfair dismissal was lodged by the appellant. The matter ended at arbitration.

The arbitrator found that the appellant had not been unfairly dismissed on the basis that the appellant’s last contract had expired. It was found too that the respondent would engage two riggers based on availability of jobs and when such were not available, then the appellant would alternate with another rigger. The renewal of Mr Chari’s contract which had expired a week earlier was seen as part of such alternating. It was held that the appellant had no legitimate expectation of his contract to be renewed, in the circumstances and that Mr Chari had not been hired in place of the appellant. It was concluded that the respondent had not violated section 12B (3) (b) and the termination of employment was lawful.

Aggrieved by the arbitral award, the appellant has filed this present appeal raising four grounds of appeal. In submissions before me, the appellant’s Mr Mafongoya conceded that the resolution of grounds 1 and 2 of appeal would resolve the issues on appeal. These are the grounds of appeal.

The learned arbitrator erred at law in finding that the appellant’ s contract of employment had not been terminated in violation of section 12B (3)(b) of the Labour Act [Chapter 28:01].

The learned arbitrator grossly erred in facts amounting to an error at law in ignoring the evidence presented before her and in manufacturing facts that were never submitted to her by either party that;

The appellant had agreed without challenge that his contract of employment was for a weekly duration.

It was an agreed fact that the company would engage two riggers and that at the material time the said riggers were actually being employed on an alternating basis.

Mr Chari’s contract of employment had expired weeks before the renewal on 6 September 2010 when in fact he had last been employed in August.

Mr Chari had not been employed in the appellant’s stead in violation of section 12B (3)(b)(ii) of the Labour Act [Chapter 28:01].

I intend to start off with ground of appeal 2 which challenges the factual conclusion of the arbitrator and end with ground of appeal 1 which is on the legal conclusion.

Ground 2.1  -    Whether or not the appellant challenged the weekly duration contract

I do not believe that the resolution of this issue would assist either party in resolving the issue of whether or not the termination of the contract was lawful. I am unable to see from the record and the arbitral award where the arbitrator made a finding that the appellant had agreed without challenge that his contract of employment was for a weekly duration.

The record contains a signed contract of employment running from 1 to 5 September 2010. I therefore find no merit in ground 2.1 of appeal.

2.2  -  Whether the respondent would employ two riggers and whether at the material time they were employed on an alternating basis

In submissions before both the arbitrator and this court, the appellant made it clear that he was employed by the respondent on 12 January 2008 and was signing monthly contracts until 31 August 2010. Surprisingly, in a cover letter to this court’s request for contracts covering this period, the appellant made an about turn and claimed that before 1 September 2010, he had been on a contract without limit of time. Such an attempt to mislead the court is unacceptable.

The respondents failed to provide any contracts of employment for the appellant and Herbert Chari to show that prior to September 2010, these two were employed by the respondent as riggers at the same time, or even on alternating basis. The contracts availed to me show that Herbert Chari was employed on 6 September 2010 to 30 September 2010. There is a contract for the period 1 January to 31 January 2011, then some for 2016 up to June.

There is no factual basis on record for the conclusion reached by the arbitrator that the respondent would engage two riggers when it had available jobs then have these riggers alternating in signing short contracts when jobs were scarce. This is so even after this court requested copies of all relevant contracts.

I find therefore that the arbitrator erred in her conclusion on the facts and this amounts to an error at law. Ground 2.2 of appeal therefore succeeds.

2.3  -   Whether Mr Chari’ s contract had expired weeks before the renewal on 6 September 2010 or he had been last employed in August

This is another ground which is inelegantly drafted and is unclear. I say so because if one was last employed sometime in August (I presume 2010), and they have their contract renewed on 6 September 2010, the contract is obviously renewed weeks after its expiry. So whichever way one looks at this, the factual conclusion is the same. I will therefore not spend more time on this.

I will deal with ground of appeal 2.4 in addressing ground 1 of appeal.

Ground 7  -   Whether the appellant’s contract of employment was terminated in violation of section 12 B (3)(b) of the Labour Act

Section 12 B (3)(b) provides as follows:

“(3)	An employee is deemed to be unfairly dismissed—

(b)	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.”

It is the appellant’s argument that he had a legitimate expectation of his contract of employment being renewed as he had been employed by the respondent for two years on monthly fixed term contracts without any break. The only alteration is said to be the last one week contract which ran from 1 September to 5September.

The appellant contends that he was replaced by Mr Chari who had been working for Alstom Zimbabwe, a different company since January 2008 and who had only been employed in February 2010 specifically for a once-off boiler shut down process. This job is said to be different from the rigging job the appellant was employed to do.

The appellant referred the court to the case of Matake & Ors v Ministry of Local Government & Ors 2007 ZLR 96 (H) regarding the requirements of legitimate expectation and argued that his expectation of the renewal of his contract was reasonable was induced by the respondent who had the authority to make such a representation.

It is argued that the facts show that the appellant was replaced as a rigger by Mr Chari, who was hired in his stead.

The respondent argued that Mr Chari did not replace the appellant, he was not a new employee but was subcontracted to Siemens SA who had a contract with Zimbabwe Power Company with whom the respondents had a service contract. The work done by Mr Chari is said to be separate and distinct from that done by the appellant. It is further argued that on his part, Mr Chari had also had continuous fixed term contracts with the respondent up to five years. The appellant’s contract is said to have been not renewed when Zimbabwe Power Company did not renew a service contract held with it.

The Supreme Court, in the case of Kundai Magodora & Ors v Care International Zimbabwe SC 24-14, had occasion to interpret section 12 B (3)(b) and stated that this provision’s plain meaning is that an employee on a fixed term contract must have had a legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead. It was held that the requirements are patently conjunctive.

As to the legitimate expectation of renewal arising out of continual renewal of fixed term contracts, the Magodora supra matter says one cannot avoid the explicit provisions of the contracts in casu. The appellant’s contracts all specify a starting date and an ending date. In paragraph 10 thereof the contract states:

“The contract will cease on … and both parties to the contract agree and accept that the employee’s services will automatically cease on that day.”

The Supreme Court held that the parties are bound by the express terms they agreed to and cannot complain, notwithstanding those terms, that they had a legitimate expectation to be re-engaged.

The fact that the last signed fixed term contract in casu was only for the period 1 to 5 September 2010 is also telling. The parties agreed to be bound by the terms signed to, even though they might have been unfavourable.

In the light of the clear terms of the contracts signed, I do not find that the respondent made any representation to the appellant which can be considered as clearly unambiguous, without qualification, which is reasonable, that the fixed term contract would be renewed.

Consequently there was no legitimate expectation.

As to the question whether the appellant was supplanted by Mr Chari, one need only look at the two contracts of employment.

Paragraph 1 of all of the appellant’s contracts, reads:

“The employee will be employed as rigger Grade/Class and will be required to carry out specific tasks allocated to him/her.”

Even the last signed contract of 1 to 5 September 2010 contains this clause.

On the other hand Mr Chari’s available contracts, including that of 6 to 30 September 2010 provides as follows in paragraph 1.

“The employee will be employed as rigger grade/class and will be required to carry out specific tasks allocated to him/her on Siemens Oil Burner Management Project.”

This difference supports the respondent’s case that the tasks of the two riggers were separate and distinct and that the appellant’s contract was not renewed when Zimbabwe Power Company did not renew a service contract held with it whereas Mr Chari was seconded to a different contract relating to Siemens.

I find therefore that Mr Chari was not employed instead of the appellant.

My considered opinion is that the arbitrator did not err in concluding that section 12B (3)(b) of the Labour Act had not been violated when the appellant’s contract was not renewed.

This appeal is therefore dismissed for lack of merit.

Matsikidze & Mucheche, appellant’s legal practitioners

Messrs G Makings, respondent’s legal practitioners