Medical Investments Limited t/a The Avenues Clinic v Fungai Kazangarare

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/122/2024
CASE NO LC/H/615/23
19 FEBRUARY 2024 AND 21 MARCH 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE 19 FEBRUARY 2024 AND 21 MARCH 2024

JUDGMENT NO LC/H/122/2024 CASE NO LC/H/615/23

MEDICAL INVESTMENTS LTD	APPELLANT T/A THE AVENUES CLINIC

FUNGAI KAZANGARARE	RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant	-	Mr H. Mutasa, Attorney

For Respondent	-	Mr E. Chigova, Unionist

MUSARIRI, J:

On the 4th of July, 2023 at Harare, G. Mudzengi in his capacity as a Designated Agent (DA) issued a determination. He ordered appellant (employer) to reinstate respondent (employee) or pay him damages in lieu of reinstatement. The employer then appealed the determination to this Court in terms of section 92 D of the Labour Act Chapter 28:01 hereafter called the Act. The employee opposed the appeal.

The grounds of appeal were a duet thus,

“1. The Honourable Arbitrator grossly erred such error amounting to an error of law when he determined that the Respondent’s had been discriminated against on the basis of her pregnancy yet there was no evidence to support that conclusion.

2. The Honourable Arbitrator erred in law when he determined that the Respondent had a legitimate expectation of being re-hired yet the contract of employment that she signed clearly excluded such an expectation.”

1st Ground

The Designated Agent ruled as follows,

“From the facts of the matter in dispute, the Claimant was on a fixed term contract, from February 2022 to January 2023. Exactly 1 year on continuous service which clearly indicates that the claimant had completed the qualifying period for her to qualify for the paid maternity leave. It is misleading for the Respondent to argue that the Claimant proceeded on unofficial maternity leave. An analysis of the evidence filed by the Claimant, shows that an application for maternity leave was made together with a certificate signed by a registered medical practitioner to confirm the pregnancy as prescribed by the Labour Act. The Respondent had no right at law to turn down the application because maternity leave is a right to all female employees who meet the conditions highlighted above.”

Section 18 of the Act which the Designated Agent relied on provides that

“(1) Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of ninety-eight days on full pay to a female employee who has served for at least one year.”

The employment relationship between the parties was governed by a fixed-term contract running from 1st February 2022 to 31 January 2023. The employee’s application for maternity leave (which is not on record) was dismissed by the employer’s letter dated 5th January 2023 on the basis that the leave went beyond the expiry of the employment contract. The employee could only qualify for maternity leave after serving for at least one year. Her one-years’ service came on the 31st January 2023. Therefore, the employer was perfectly entitled to deny the request made earlier than the requisite one year. The Designated Agent was clearly wrong to conclude that the employer wrongfully violated the employee’s “right” to maternity leave.

2nd Ground

The Designated Agent ruled that,

“Again, from the facts in casu, it has been pointed out that the Respondent in question engaged three employees as Admissions Clerks doing same duties as used to be done by the Claimant. The Respondent in both oral and written submissions did not deny the fact that other people were engaged in place of the Claimant. Therefore, this clearly shows that the Respondent was still in need(y) of the services of an Admissions Clerk but was reluctant to renew the Claimant’s contract of employment on the basis of her pregnancy status.

The Respondent also argued that the Claimant had no legitimate expectation because the contract of employment she signed had a clause clearly indicating that the Respondent had no obligation to renew the contract on expiry, As highlighted above, the Claimant’s contract of employment was not renewed because of her pregnancy

status, which is discrimination, hence the argument is not valid and cannot be considered. It is therefore my conclusion that the Claimant was unfairly dismissed, which is a violation of Section 12B(3) as read together with Section 18(1)(7) and Section 5(1) of the Labour Act …”

Section 12 B(3) of the Act deems as unfair dismissal the non-renewal of a fixed term contract where an employee had legitimate expectation of renewal but was substituted by a replacement. The parties’ contract dealt with renewals thus,

“1. …This fixed term contract should not be construed in any manner as an offer of permanent employment …and any renewal of this contract shall not be construed as creating an obligation on the employer to renew the contract again. The Employee must not entertain expectations of any further renewals”

By agreeing to clause 1 above, the employee effectively renounced expectation of renewal. It therefore follows logically that no legitimate expectation of renewal could arise in the circumstances. Such expectation as the employee might have borders on wish not right. This view is consonant with the dicta in

Magodora v Care 2014 (1) ZLR 397(S) Per Patel JCC

“In principle it is not open to court to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so as a matter of public policy.”

CONCLUSION

In light of the foregoing analysis and synthesis it is concluded that the both grounds of appeal were well-made and the appeal ought to succeed.

Wherefore it is ordered that,

The appeal be and is hereby upheld;

The determination dated 4th July 2023 by Designated Agent G. Mudzengi is set aside and substituted as follows

“The claim of unfair dismissal b e and is hereby dismissed.” and

Each party shall bear its own costs.

J-U-D-G-E