Kasimu Bwanya v Profeeds (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/754/16
HARARE, 29 MARCH 2016
CASE
JUDGMENT NO. LC/H/754/2016
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IN THE LABOUR COURT OF ZIMBABWE         JUDGMENT NO. LC/H/754/16

HARARE, 29 MARCH 2016                                       CASE NO.LC/H/201/15

AND 18 NOVEMBER 2016

In the matter between:

KASIMU BWANYA		                        Appellant

And

PROFEEDS (PVT) LTD		                    Respondent

Before the Honourable B.T Chivizhe: Judge

For Appellant:		Mr E. Maponga(Trade unionist)

For Respondent:		Mr Mtelela(Group HR)

CHIVIZHE, J:

The appeal was noted as against an arbitral award dated 27 January, 2015 the operative part of which reads as follows;

“AWARD”

“Wherefore after carefully analysing the facts and law, I make the following award

That the claimant’s claim of unfair dismissal is hereby rejected.”

The material background facts of the matter are as follows:

The appellant was employed by the respondent. The basis of his employment is the subject of dispute between the parties. Before the arbitrator Appellant submitted that he was engaged on the basis of fixed term contracts as from July 2010 up to September 2012.From October 2012 to the 2nd of January, 2013 he was engaged on a contract without limit of time. The appellant also submitted that the respondent had indicated to him that he was not renewing his last fixed term contract but on the same day the respondent had engaged another person to replace him. On that basis appellant was claiming an unfair dismissal. He was therefore praying for reinstatement to his original position without loss of salary and benefits, if reinstatement was no longer tenable the employer was to be directed to pay back pay as well as damages in lieu of reinstatement.

The respondent submission was that the appellant had failed to comply with company procedures which required employees on fixed term contracts to upon being issued with contracts, sign such contracts and return to the wages administrator. The appellant had been given a contract by the wages administrator and had failed to return the completed and signed contract as per procedure. A human resources audit had established that appellant’s contract was missing. The appellant was then requested to write a report as to why he failed to return the signed copy of his contract. The respondent submission was appellant refused to write the report. He thereafter deserted his workplace. The respondent disputed that the Appellant’s contract of employment had been altered to that of a contract without limit of time. This was also practically impossible given the Respondent’s operations.

The arbitrator after analysing the law and considering the arguments concluded that the appellant’s fixed term contract did not mutate into one of a contract without limit of time when the respondent overlooked to renew his contract. There was according to him a tacit renewal of the last fixed term contract on the same terms and conditions. He therefore found that there was no unfair dismissal. Dissatisfied with that finding the appellant filed the present appeal. The appeal in my view is hopelessly devoid of merit. I proceed to demonstrate below;

The appeal is noted on the basis of the following grounds:

The arbitrator grossly erred on his findings on a question of law that if the legislature wanted a fixed term contract become permanent upon failure to renew does not necessarily mean the worker will become permanent.

The learned arbitrator erred at law by overlooking section 2 of the Labour Act(Chapter 28-01),Interpretation of casual work, section 12(3)Duration, particulars  and termination of employment contract and section 12(b),(1),(2)(a),(b) and subsection (3 Dismissal when the learned arbitrator talked of tacitly renewal of fixed term contract.

The employer had unlawfully terminated the applicants without following any law which is against the provision of section 12B (2) (a) of the Labour Act (Chapter 28-01/96).

The learned arbitrator erred at law by disregarding that, another person called Sibanda was engaged on the very day instead of the Claimant, this shows that the arbitrator did not apply his mind on the case before him hence coming to the conclusion that, the claimant claim of unfair dismissal is hereby rejected.

The learned arbitrator grossly misdirected himself when he said, if the legislature wanted a fixed term contract to be become permanent upon failure to renew one that should have been expressly stated as in the case of casual employees who become permanent when the period of engagement exceeds a total of six weeks in any four consecutive months on a silent contract hence should be deemed a permanent employee.

From an analysis of appellant’s grounds of appeal it is clear that the appellant is confused as to facts and as to the law. This is a surprise considering that he is represented by a Trade Unionist. The appellant seems in his grounds to be confused as to what nature of contract he was in. He suggests on one hand that he was on a ‘fixed term’ contract and then he also suggests he was a permanent employee engaged on the basis of a contract without limit of time. He also through ground 3 makes an unusual reference to section 2(i-e) on interpretation of casual work. It is also clear on the basis of section 98(10) of the Labour Act that an appeal on a question of law shall lie to the Labour Court from any decision of the arbitrator appointed in  terms of that section. It is apparent that the grounds of appeal which have been articulated by the appellant do not clearly raise questions of law, but assuming they do I shall proceed to tackle each one of them.

In the first ground the appellant suggests that the arbitrator erred in concluding that it was not the intention of the legislature to provide for mutation of a fixed term contract to a contract without limit of time. No question of law arises from this ground, clearly. The issue however seems to arise from the award where the arbitrator in his findings had concluded as follows:

“If the legislature wanted a fixed term contract to become permanent upon failure to renew one’s contract should have been expressly shown as in the case of casual employees who become permanent when the period of engagement exceeds a period of six weeks in any four consecutive months.”

The arbitrator in my view made a correct observation. The Labour Act (Chapter28:01) as it presently stands makes no provision for the mutation of a fixed term contract to one of a contract without limit of time in whatever circumstances. The arbitrator was also merely restating the principle as adopted even by superior courts that courts as indeed arbitrators are not at large to deviate from the clear and unambiguous language of an act of Parliament. See for example Kundayi Magodora vs Care international Zimbabwe HC 24/2014. In casu it is not disputed by the Appellant was engaged on the basis of a fixed term contract.  The fact that the employer had not renewed the last fixed term contract and Appellant had continued to work does not mutate that contract into a contract without limit of time.

The second ground of appeal is clearly misconceived. Section 2 of the Labour Act (Chapter 28:01) has no relevancy to the matter as it relates to casual employees.  The facts in this case clearly show that appellant was engaged on a fixed term contract, and not on a casual basis.

In the third ground of appeal, appellant takes issue with the employer for unlawfully terminating the appellant employment without following any law. The ground of appeal is not directed or in any way challenging the arbitral award. As such it is an incompetent ground and ought to be struck out as I hereby do.

In the fourth ground of appeal appellant argues that the arbitrator disregarded that another person called Sibanda was engaged in appellant place. The plain meaning of section 12B (3) of the Labour Act (Chapter 28:01) admits of no ambiguity. It reads as follows:

“An employee is deemed to be unfairly dismissed if a termination of an employee contract of fixed duration the employee:

Had a legitimate expectation of being engaged ;

And

Another person was engaged instead of the employee.

It is clear on the basis of the provision in section 12B (3) that the two factors should be simultaneously present in order for one to sustain a claim made under section 12B (3). This was stated in Kundayi Magodora and Anor vs Care International Zimbabwe HC 24/2014. The onus is also on the employee therefore to prove firstly that he had a legitimate expectation to be engaged and secondly that another person was supplanted in his place see the case of UZ-UCSF Collaborative Research Programme in Women’s Health vs David Shamuyarira SC 10/2010.

It is clear from the award that appellant made submissions that a Sibanda had been engaged to replace him. The arbitrator in his findings did not specifically address the aspect. He instead focussed on the appellant’s second submission that he had become a permanent employee.    It is clear that appellant’s submissions were confused. He could not claim to be on a fixed term contract and then a permanent employee at the same time. His arguments were mutually destructive of each other. The facts however clearly show he was engaged on a fixed term contract. With regards his claim for unfair dismissal under section 12B (3) he ought to have placed before the arbitrator evidence firstly that he had legitimate expectation to be engaged and secondly that Sibanda was engaged to replace him. The record does not disclose that such evidence was produced before the arbitrator. In the absence of such evidence having been placed before the arbitrator his claim could not have been sustained.

The last ground is repetitive of the issues raised in the earlier grounds. The Court finds that the Appellant having failed to prove that he was unlawfully dismissed in terms of the provisions of section 12B(3)(b) of the Labour Act(Chapter 28:01) the arbitrator was correct in dismissing his claim. The appeal being devoid of merit it is accordingly dismissed.