Lovemore Jere v Olam Cotton

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/138/2014
HARARE, 24 FEBRUARY 2014
14 MARCH 2014
CASE NO LC/H/787/2013
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/138/2014

HARARE, 24 FEBRUARY 2014&			 CASE NO LC/H/787/2013

14 MARCH 2014

In the matter between:

LOVEMORE JERE								APPELLANT

Versus

OLAM COTTON								RESPONDENT

Before The Honourable F C Maxwell   :   Judge

For the Appellant      K Choga(Legal Practitioner)

For the Respondent	   T Hussein (Legal Practitioner)

MAXWELL J:

The appellant was employed by the respondent as from December 2005 until sometime around 25 June 2009 when his contract was terminated. The appellant was aggrieved and the matter went for arbitration on 28 September 2010. The honourable arbitrator W Kambanje ruled in favour of the appellant and ordered his reinstatement. In the alternative the respondent was to pay damages in the event that reinstatement was no longer tenable.

The respondent was aggrieved and appealed to this court on 7 March 2013. The appeal was subsequently withdrawn and the matter was referred to an independent arbitrator to quantify the damages in lieu of reinstatement. The matter was heard by honourable arbitrator C H Mucheche. On 5 September 2013 the honourable arbitrator made the following award:

“The respondent shall pay the claimant the sum of $2 100-00 being the seven months damages for the unexpired period of his contract of employment with interest thereon at the rate of 5% per annum calculated from the date of the Arbitral Award to the date of full payment.

Each party will bear its own costs.”

On 3 October 2013 this appeal was noted. The grounds of appeal are:

The honourable arbitrator grossly misdirected himself on the facts and erred at law in finding that the appellant was an employee on fixed term contract when in fact the appellant was a permanent employee.

The honourable arbitrator erred at law in relying upon unsigned contracts to make a finding that the appellant was a fixed term contract employee.

The honourable arbitrator erred at law in using a wrong method in quantifying damages.

The honourable arbitrator erred at law in failing to award the appellant his leave days in terms of the payslips which were placed before him.

The honourable arbitrator erred at law in failing to award the appellant his arrear salaries despite concession by the respondent to the existence of the said arrear salaries.

In response, the respondent stated that the arbitrator did not err in law in handing down the award. The respondent averred that the employee was on a fixed term contract and the correct method was used in the quantification of damages.

When the matter was set down for hearing the parties opted to have the matter decided on the papers.

The first issue for consideration is whether or not the appellant was an employee in terms of a fixed term contract or a permanent employee. The question arises from the facts that from 2005 to 2008 parties were signing yearly contracts. When the 2008 contract expired the appellant refused to sign a contract for 2009 which the respondent had prepared. The appellant was of the view that he had become a permanent employee. The respondent on the other hand argued that in terms of the principle of tacit relocation, the appellant remained on a fixed term contract on the same terms and conditions that prevailed prior to the expiry of the contract. The arbitrator’s finding in this regard cannot be faulted. The respondent and the appellant’s relationship was based on fixed term contracts. Even though the appellant refused to sign the 2009 contract, the respondent demonstrated the desire to continue the relationship on fixed term by preparing a contract for the appellant’s signature. As stated in Gumbo v Air Zimbabwe 2000 (2) ZLR 126 at 130:

“… there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period without agreeing new terms there is a tacit relocation of the expired contract on the same terms and for the same duration.”

The first and second grounds of appeal therefore fail. The third ground of appeal is related to the first and second and consequently also fails. The honourable arbitrator quantified damages on the basis of a contract that had been tacitly relocated. As it was a fixed term contract the appellant is entitled to be paid for the unexpired period of the contract, in casu seven months. As regards the fourth and fifth grounds of appeal what was referred to the arbitrator was the issue of quantification of damages in lieu of reinstatement (page 2 of award). The award by honourable arbitrator W Kambanje, which is the basis for the quantification, provided that:

“4.	If reinstatement is no longer possible, parties shall negotiate for damages in lieu of reinstatement and in the event of a deadlock on the quantum of damages, that dispute shall be referred to this arbitrator for quantification.”

It would have been incompetent of honourable arbitrator Mucheche to delve into other issues other than damages for reinstatement. Clearly arrear salary and leave days not fall into that category. The arbitrator was therefore correct in not awarding arrear salaries and leave days as that was not part of his terms of reference.

Accordingly the appeal fails and I order as follows:

The appeal, being without merit, be and is hereby dismissed.

There is no order as to costs.

Mbidzo, Muchadehama&Makoni, appellant’s legal practitioners

Hussein Ranchhod& Company, respondent’s legal practitioners