Mandela Training Centre (Pvt) Ltd v Gift Vareta & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/438/2014
HARARE, 01 JULY 2014
CASE NO.
JUDGMENT NO. LC/H/438/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/438/2014

HARARE, 01 JULY 2014		                                  CASE NO. LC/H/276/14

And 18TH JULY 2014

In the matter between:-

MANDEL TRAINING CENTRE (PVT) LTD			Appellant

And

GIFT VARETA							1ST Respondent

And

KENNETH NYAMAGONDO					2ND  Respondent

And

CAROLINE MAKANDA						3RD Respondent

And

DAMBA NAISON							4TH Respondent

And

LOVEMORE MUTSAKAMA					5TH Respondent

And

CLIFFORD KAZIZI						6TH Respondent

And

EFFORT CHDYAGONDO						7TH Respondent

And

BARBARA SABAU							8TH Respondent

And

NUMELY DZANWA						9TH Respondent

And

MASYLIN KASEKE							10TH Respondent

And

ELIZABETH MASAWI						11TH Respondent

And

DOROTHY KAVAMBA						12TH Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. K. Ncube (Legal Practitioner)

For Respondent		Mr. O. Zimbudza (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the Arbitral Award of Honourable N Bore which was issued on the 18th of March 2014.  The operative point of the award reads as follows:

"The respondent is therefore ordered to pay to the applicants;

Salaries equivalent to three months wages based on the rate applicable at the each applicant’s contract was terminated.

Housing allowances for three months period at the gazetted rates.

Cash in lieu of leave for three months period.

Any other benefits to which the applicants were entitled to in terms of their respective contracts of employment.

The arbitrator may be approached for quantification in the event of a dispute or deadlock.

This order does not cover the eleventh applicant whose claim has been dismissed.

I so award”.

The Appellant’s argument in this case is that the Arbitrator misdirected himself on a point of law after finding that the Respondents had failed to discharge the onus that they had legitimate expectation and that should have been the end of the inquiry.  The Appellant submitted that if there is no legitimate expectation of being re-engaged notwithstanding that another person is engaged instead of the employee, then there is no unlawful termination of employment.  The 12th Respondent did not report for work after being accused of theft. She stopped reporting for work until the expiry of her contract.  She never turned up for the renewal of her contract therefore she had no legitimate expectation of employment.  The Appellant also told the court that the arbitrator misdirected himself when he found that the 1ST Respondent who was now deceased had legitimate expectations to be employed.

It was further stated that 6th, 7th and 9th Respondents were replaced by one Isaac Basitera and that this was a gross misdirection of fact amounting to a point of law.  It is on these facts that the Appellant has prayed that the appeal should be allowed.

The Respondents on the other hand told the court that;

At the time of the hearing the 1st Respondent was deceased.

The 12th Respondent remained an employee and if she had committed an offence a hearing should have been conducted.

The continuous renewal of the contracts of employment established a legitimate expectation by the Respondents.

The circumstances leading to the dismissal of the Respondents led to legitimate expectation.  It is on these grounds that the Respondents applied for the dismissal of the appeal.

It is common cause that;

The Respondents were employed in various capacities by the Appellant.

The contracts were continuously reviewed for considerable periods.

What is to be decided is whether the arbitrator wrongly interpreted Section 12 B (3) (b) of the Labour Act.

Section 12 B (3)(b) of the Labour Act states that;

“An employee is deemed to have been unfairly dismissed.

(c) 	If on termination of an employment of contract of fixed duration, the employee

(i)	Had a legitimate expectation of being engaged and

(ii) 	Another person was engaged instead of the employee”

On page 8 of the Arbitral award the Arbitrator found that

“(1)	A fixed term contract of employment should therefore terminate at the expiration of the term or completion of the task, for which it was entered into.

(2)	The termination follows automatically and is not normally considered to be a dismissal.

(3)	Page 9 – The onus of proving a reasonable expectation rests on the applicants.  They are therefore required to prove that their expectation of renewal was reasonable and that apart from a subjective perceptive there is an objective, factual basis for such an expectation.  The applicants should prove the existence of facts that would in the ordinary exercise head a reasonable person to anticipate renewal of their fixed – term contract.  Furthermore, it is unreasonable to conclude that all the applicants had the same expectation irrespective of the variances in the number or frequency of the renewals and lengths of the contracts.  I am convinced the applicant arguments does not meet the objective test to be applied in order to determine whether a reasonable expectation existed or not find the applicants’ arguments lacking as it mainly based on the continued renewal and engagement of replacements without taking into account the above mentioned factors.”

This court agrees with the Arbitrator’s findings in the arbitral award.  However having come to this conclusion there was no need for the arbitrator to proceed to found out whether another employee was engaged or not.  In the case of Kundai Magodora And Others v Care International Zimbabwe SC 24/14 PATEL JA explained the importance of “and” in Section 12 B (3) (b) as follows;

“The plain meaning of this provision is that the employee on a contract of fixed duration must have a legitimate expectation of being re-engaged upon its termination and he was supplemented by another person who was engaged in his stead.  These requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another or employee does not suffice.”

This was also stated by the Supreme Court in the case of UZ – UCTSF Collaborative Research in Women’s Health v Shamuyarira 2010 (1) ZLR 127 at page 113A-C when the court held that;

“In relation to subsection 3 (b) the onus is on the employee to prove firstly that he had a legitimate expectation to be re-engaged and secondly that another person was engaged in his stead.”

Furthermore the Arbitrator erred when he found that the 6th, 7th and 9th Respondents were replaced by another employee that is Isaac Basitera.  Isaac cannot replace three people.  No one was authorized to stand for the 1st Respondent who is now late.  If the Respondent was late at the time of the hearing then there was no legitimate expectation arising from a deceased person.

In view of the foregoing this Court finds that the arbitrator wrongly interpreted section 12 B (3) © of the Labour Act.

Accordingly it is hereby ordered that the appeal be and is hereby allowed.

GILL, GODLONTON & GERRANS, Appellant’s legal practitioners

ZIMBODZA & ASSOCIATES, Respondents’ legal practitioners