Lobels Bread (Pvt) LTD V Edmore Chiku

### Preamble
1
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/170/25
HELD AT HARARE 13TH FEBRUARY 2025
CASE NO. LC/H/8/25
In the matter between
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IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE 13TH FEBRUARY 2025
AND
In the matter between
LOBELS BREAD (PVT) LTD
And
EDMORE CHIKU

JUDGMENT NO. LC/H/170/25
CASE NO. LC/H/8/25

APPELLANT
RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE E. MAMAKURE JUDGE.

FOR THE APPELLANT: A. K. MAGUCHU
FOR THE RESPONDENT: J. MAWOPA

MAKAMURE J:

[1]This is an appeal from a decision made by an arbitrator.

The following are the grounds of appeal.

‘1. The Arbitrator erred at law in finding that the respondent was unlawfully dismissed because he had become an employee on a contract without limit of time in circumstances where the respondent waived his right to become a permanent employee by signing fixed term monthly contracts.

2. The arbitrator erred at law in according the respondent the status of a permanent employee through the deeming proviso in section 3 of Statutory instrument 257 of 2018 when the countervailing evidence on record reflects that the deeming proviso was rebutted through the respondent admitting that he continued to sign fixed term contracts meaning that, in fact, the respondent was not an employee on a contract without limit of time.

3. The arbitrator erred at law in determining that the fixed term contracts of employment agreed to by the respondent were null and void in circumstances where there was no unlawfulness arising from the fixed term contract.’

[2]The facts of this case appear common cause. They are as follows. The respondent was in the employ of the appellant on the basis of a fixed term contract which was renewed monthly since February 2014. The last monthly contract was due to end at the end of June 2024. On 25 June 2024 some dispute must have arisen between the parties. This resulted in the respondent not going back to work. The reason for the failure to go to back to work appears not clear but this resulted in the respondent raising allegations of unlawful dismissal.

[3] Meanwhile the respondent through the trade union and on the same day that situation at his workplace changed (25 June 2024), realized that in terms of provisions of S.I.257/2018 by that time (25June 2024) he had qualified to be considered as an employee on a contract without limit.

[4] In view of this realization, he felt that he had been unlawfully dismissed. He raised allegations of unlawful dismissal. The matter was conciliated on and then referred for arbitration.

The terms of reference for the arbitrator were: 1) Whether or not there was unlawful dismissal and 2) Whether or not there was a violation of Statutory Instrument 257 of 2018? If so, the remedy thereof.

[5] The appellant is a duly registered company in terms of the laws of Zimbabwe. It falls under the food and allied industries and therefore disputes and other work related issues are governed by the National Employment Council (NEC) for the Food and Allied Industries (Baking Sub-Sector). In 2018 the applicable Collective Bargaining Agreement (CBA): Food and Allied Industries (Baking Sub-Sector) Statutory Instrument 22 of 2013 was amended by Statutory Instrument 257 (S.I.257/2018).

Paragraphs 1, 2 and 3 of S.I. 257 /2018 provide as follows:

‘1. A fixed term contract of employment shall be for a minimum period of one month and flexible up to a maximum period of 12 months effective from the date the employment contract commenced. The employment contract shall specify the date of commencement and the date of termination thereof.

2. The combined /cumulative maximum duration of consecutive fixed term contracts, for the Baking Sector shall be four and half years thereafter an employee shall be deemed to have become an employee on a contract without limit of time.

3. The period between any two consecutive fixed term contracts which shall render the continuous period broken is one month.’

[6] S.I.257/2018 does not say what the consequences of failure to implement its provisions are to the parties. This means that the Court has to deal with this issue in the process of considering the grounds of appeal.

[7] The Arbitrator found that in view of his length of stay with the appellant as an employee on a contract of fixed duration, and in terms of the provisions of s2 of S.I. 257 of 2018 the respondent had become an employee on a contract without limit of time. The Arbitrator’s determination was that termination of the respondent’s contract of employment under the circumstances was not fair. The Arbitrator determined that as a result of the respondent’s status, the fixed term contracts that were signed by respondent and bound the parties were null and void. The Arbitrator ordered reinstatement of the respondent with an alternative order for damages should reinstatement of the respondent be no longer possible. This aggrieved the appellant hence the present appeal on the above - mentioned grounds.


[8] I mention in passing that it would have been instructive had the real reason behind the separation of the parties been decided on. This is said in view of the fact that the question of the length of the respondent’s employment on a fixed term contract is not in dispute. However, that issue is not before this Court.

[9] In terms of s3 of S.I. 257/2018 once an employee on a contract of fixed duration has been so employed such that ‘the cumulative maximum duration …is four and half years, the employee shall be deemed to have become an employee on a contract without limit of time.’ The respondent met the requirements of the law. Unfortunately, he was not aware of it.

[10] Before this Court it was argued on behalf of the appellant that the respondent waived his right to become a permanent employee by signing fixed term contracts on a monthly basis. It was submitted that as of 1st May 2023 the respondent was deemed to have become an employee on a contract without limit of time but he continued to sign fixed term contracts. He led the employer into believing that he would not insist on his rights. Reliance was placed on: Barclays Bank of Zimbabwe Ltd v Binga Products (Pvt) Ltd 1985 (3) SA 1041(ZS); Laws v Rutherford 1924 AD 261 among other authorities.

[11] With respect to the 2nd ground of appeal it was argued that the Arbitrator erred by according the respondent permanent employee status as envisaged by s3 of S.I. 257 of 2018 when the respondent had rebutted this proviso by continuing to sign fixed term contracts, meaning that the respondent was not an employee on a contract without limit of time. It was submitted that a ‘deemed’ position was an assumed position but not a definite position where there was countervailing evidence.

[12] It was argued with respect to the 3rd ground of appeal that the Arbitrator erred by saying that that the fixed term contracts agreed to by the parties were null and void where there was no unlawfulness arising from the fixed term contracts. Reference was made to the case of Moyo v Zvoma SC 28/10 in support of this argument. It was submitted that while there was a deeming provision, this did not stop the respondent from choosing to be on a fixed term contract.

In the circumstances the Court was urged to grant the appeal.

[13] It was argued on behalf of the respondent on the contrary, that the respondent actually became aware of his rights on 25th June 2024 despite the law having deemed him permanent on 1st May 2023. It was argued that the Arbitrator correctly determined that the respondent’s contract was unlawfully terminated. It was argued further that there was no evidence that the respondent had waived his rights. It was submitted that by operation of law the respondent became an employee on contract without limit of time on 1st May 2023. It was submitted that the Arbitrator correctly demonstrated that the respondent had become an employee on a contract without limit and this rendered the subsequent fixed term contracts null and void. It was further argued that the appellant violated provisions of S.I. 257/2018 which sought to address the issue of casualization of labour. Reference was made to Madoda v Tanganda Tea Co. Ltd 1999(1) ZLR 374 and Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S)

In the result the Court was urged to dismiss the appeal with costs on a punitive scale.
 [14] In Mutare RDC v Chikwena 2000(1) ZLR 534 (S) where an undertaking was purchased as a going concern, all the employees were deemed to have been transferred to the new employer. They were considered to have been transferred to the new employer. In the present case after a period of four and half years in employment on the basis of a fixed contract the respondent was deemed to have become an employee on a contract without limit of time as envisaged by the provisions of S.I 257/2018. No doubt the Arbitrator interpreted that correctly. There does not appear to be any controversy between the parties as regards the interpretation of those provisions. However, what the appellant is saying is that despite the fact that the respondent had become an employee on a contract without limit of time, he continued to sign contracts of fixed duration. The appellant argued that the respondent, by signing the fixed term contracts, waived his right to become a permanent employee.

[15] In Chidziva & Ors v Zimbabwe Iron & Steel Co. Ltd 1997 (2) ZLR 368 the court stated as follows:

‘In the present case, no real attempt was made to show that the appellants abandoned their rights with full knowledge of those rights. All that was submitted was that the appellants accepted the retrenchment packages. The respondent should have gone further to show that they did this with full knowledge that they were abandoning their rights. On this I also cite with approval the passages at p 489 of Christie’s above cited book where the learned author said:

… there is ample other authority that it must be clearly proved that the person who is alleged to have waived his rights knew what those rights were. A party who fails to prove this necessary ingredient of waiver may still be able to raise the defence of estoppel against any attempt to enforce the rights in question. When it cannot be proved that the party alleged to have waived knew what his rights were it may appear that his ignorance is properly classified as ignorance of law. It can now be regarded as settled, despite van den Heever J’s decision to the contrary in Schwarzer v John Roderick Motors (Pty) Ltd 1940 OPD 170 at 185 that in this connection ignorance of the law is excusable provided it is istus et probabilis’ — justifiable and probable.’

See also Barclays Bank of Zimbabwe Ltd v Binga Products (Pvt) Ltd 1985 (3) SA 1041 (ZS) and cases cited therein.

[16] In Moyo and Others v Zvoma N.O. and Anor SC28/10 the Supreme Court ( Malaba DCJ

as he then was) stated that:

‘The principle of law to be applied is that where an enactment imposes an obligation but is silent as to the remedy to be awarded for disobedience, a court must ascertain from the language by which the obligation is imposed whether it is the intention of the Legislature…’

[17] The appellant says that the respondent waived his rights by signing the fixed term contracts. However, the law requires the respondent to have been fully aware of what he was doing and the legal consequences thereof. From the record the respondent was not aware of his rights. But was this excusable? I think not. He should have been diligent enough to ensure that he was up to date with the law governing the industry. He was a member of a trade union. It is the duty of trade unions to ensure that its members are aware of the protection that they have from the law before any dispute between its members and employers arise. It is clear that the intention of the Legislature by enacting S.I. 257/2018 was to guard against casualization of labour and protect employees from continuously signing contracts of fixed duration where this could be avoided. It becomes necessary for the affected persons to ensure that they are aware of such provisions by checking with the law itself or engaging their trade unions. The trade union of which he is a member did not alert him. It only did so after a dispute had arisen. This was a whole year after the law had been enacted. Thus, while he was not aware, that lack of knowledge in my view cannot excuse him.

[18] The position that the S.I. 257/2018 put respondent in did not stop him from making a choice to enter and sign contracts of fixed duration with the appellant. Because of his choice, there was nothing unlawful about these contracts. No authority has been advanced to show that the respondent could not choose to enter into a contract of fixed duration under the circumstances of this case. As such the said contracts could not have been null and void. There is nothing in the legislation that makes signing of fixed term contracts where one had a choice not to, illegal.

[19] Respondent insists that the stance taken by the Arbitrator was correct. The Arbitrator, according to respondent, implemented the intention of the Legislature to put a stop to casualization of labour which sees employers continuously putting employees on fixed term contracts for lengthy periods.

[20] In **Madoda v Tanganda Tea Co. Ltd 1999(1)ZLR 374** it was held that the golden rule of interpretation must be upheld and give words their ordinary grammatical meaning. I agree. As already noted, parties appear to be agreed as to the interpretation of the provisions under consideration and even the intention of the Legislature. The position presented on behalf of the respondent is that he became aware of the provisions after his alleged dismissal. He failed to assert his rights at the appropriate time due to ignorance. The response on behalf of the appellant is that ignorance of the law is not a defence. That is unfortunately the position.

[21] Further the provisions while deeming the position of the employee to have changed and thus safeguard his rights, do not say what should happen to an employer who fails to implement them. It is not suggested that the respondent was forced to sign the fixed term contracts. It is therefore doubtful that the fixed term contracts entered into by the parties would be regarded as null and void.

[22] Sadly, it appears that both the national employment council and the relevant trade union did not educate their members about this very important piece of legislation. I think there should be a mechanism to disseminate any changes in the law which affects workers. If this is not done there will be more victims of ignorance and workers will continue to be disadvantaged and yet this is avoidable.

[23] In view of the above I find that while the Arbitrator correctly interpreted the provisions of S.I.257 2018, the signing of the fixed term contracts under the circumstances did not make such contracts null and void. As regards waiver, a person can only waive his rights when he has full knowledge and the legal implications. In the present case the respondent only became aware of his rights after he had been dismissed by the appellant. This was over a year after he had become eligible. However, as I indicated above that his ignorance under the circumstances is not excusable. At the time that he signed each of the contracts, he accepted to be bound by the contract of fixed duration.

What this means is that there is merit in all the grounds of appeal. The appeal succeeds.

[24] It is accordingly ordered that:

1. The appeal be and is hereby granted with costs.

2. The arbitral award dated 29th November 2024 be and is hereby set aside and substituted with the following:

“(i) The claimant’s contract of employment terminated by effluxion of time on 25 June 2024.

(ii) The claimant’s claim be and is hereby dismissed with each party to bear its own costs.’

MAGUCHU & MUCHADA BUSINESS ATTORNEYS, APPELLANT’S LEGAL PRACTITIONERS.
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