Kambuzuma 2 High School SDA v Fortunate Mugwagwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/211/2016
HARARE, 17 MARCH 2016 &
8 APRIL 2016
CASE NO LC/H/50/2012
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/211/2016

HARARE, 17 MARCH 2016 &				          CASE NO LC/H/50/2012

8 APRIL 2016

KAMBUZUMA 2							       APPELLANT

HIGH SCHOOL SDA

FORTUNATE MUGWAGWA					       RESPONDENT

Before the Honourable G Musariri :  Judge

For the Appellant	  Mr M Nkomo, Attorney

For the Respondent      Mr J Mufukiza, Unionist

MUSARIRI J:

At the onset of oral argument, the respondent withdrew her objection to the appellant’s Supplementary Grounds of Appeal. These concisely set out the appellant’s case as follows:

“The arbitrator erred in making a decision that a fixed term contract would convert automatically into a contract without limit of time.

The arbitrator grossly misdirected himself when he made a finding that the respondent was unfairly dismissed yet she refused to sign a new contract.”

The following facts were common cause:

The appellant worked for the respondent as a General Hand.

In August 2010 the parties entered into a fixed-term contract.

The term was five (5) months.

In November 2010 the respondent went on maternity leave.

The contract terminated by effluxion of time on 31 December 2010.

The respondent then returned to work in February 2011.

In April 2011 the appellant asked her to sign a fixed-term contract for three (3) months.

The respondent queried why and refused to sign.

The appellant told her she could not continue working unless she signed the new contract.

On these facts the arbitrator found that the appellant had become a permanent employee by operation of section 12 (3) of the Labour Act [Chapter 28:01] (hereafter called the Act). On that basis she ruled that the respondent had been unfairly dismissed and should be reinstated. The award triggered the appeal in casu. The respondent opposed the appeal.

Section 12 (3) of the Act provides that a casual worker shall be deemed a permanent employee if his period of engagement “exceeds a total of six weeks in any four consecutive months.” The underlining is for emphasis. After the expiry of the fixed-term contract, the respondent returned to work in February 2011. She stopped working in April 2011 when their dispute arose. At most that amounts to three consecutive months. Thus the respondent did not become a permanent employee as provided by the Act.

That begs the question, what did she become? There is case authority to the effect that such an employee is deemed to have been engaged on the same terms as in the expired contract. That means the respondent reverted to another fixed-term contract for five (5) months. Thus the appellant had no justification to insist that she should sign a three-month contract. Hence by insisting on her only continuing work if she signed the shorter contract, the appellant unfairly and unlawfully dismissed the respondent. However she cannot now be reinstated as that contract would have long expired by now. As such the appropriate remedy is payment of damages being the wages for the remainder of her contract which she was prevented from serving out.

Wherefore it is ordered that:

The appeal be and is hereby partially allowed;

The arbitration award issued by Arbitrator Y Malaba dated 11 January 2012 is set aside; and

3 (a)	The appellant shall pay the respondent the equivalent of her salary and benefits for the unexpired portion of her five (5) month fixed-term contract which commenced from 1 February 2011.

(b) The said payment shall be in an amount either agreed by the parties or assessed by the said Arbitrator.

G Musariri

J-U-D-G-E