Michael Chiutsi v Mutare Bottling Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MC/12/2014
HARARE, 31 JANUARY 2014
CASE NO.
JUDGMENT NO. LC/H/12/ 2014
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IN THE LABOUR COURT OF ZIMBABWE     JUDGMENT NO. LC/MC/12/2014

HARARE, 31 JANUARY 2014	    		  	    CASE NO. LC/MC/34/13

AND 28 FEBRUARY 2014

In the matter between:-

MICHAEL CHIUTSI							Appellant

And

MUTARE BOTTLING COMPANY (PVT) LTD				Respondent

Before Honourable E Muchawa, Judge

For Appellant		-	Mr. A. Mugwanju (Trade Unionist)

For Respondent		-	Mr. D. Tandiri (Legal Practitioner)

MUCHAWA J:

Appellant was employed by respondent in 2009 on monthly fixed term contracts.  It is appellant’s allegation that in July 2011 respondent employed up to sixty employees who were on fixed term contracts, as permanent employees.  Appellant was not one of the sixty.  From that time to 13th March 2013 appellant did not sign any fixed term contract and neither was he placed on a contract without limit of time. Respondent alleges that  the last fixed term contract  expired on the 13th March 2013.  When his contract of employment was not renewed, appellant made a complaint of unfair dismissal at the Ministry of Labour, Mutare.  A certificate of settlement was then signed on the 20th March 2013.  It provides as follows:

“Both parties have agreed that the employee was not unfairly dismissed, the alleged verbal dismissal is a nullity and the employee may register his complaints/grievances with the employer, if any”.

On the same date appellant registered a complaint with the Respondent.  He stated that he was being harassed through being compelled to sign a new contract by the respondent’s Human Resources Department.  His allegation was that he was still working on his old contract of employment which was in force and he requested that his superior should stop forcing him to sign the new contract.

The immediate superior, the Head of Department and the Works Council all dismissed the appellant’s complaint.  Appellant has appealed to this court on the following grounds:

The employee was on a contract without limit of time from the time his fixed term contract expired close to 19 months ago.  It is not proper for the company to renew a contract which had expired and overtaken by events and a more favourable contract of employment which is better than a fixed term contract (sic).

The Company should have considered that Mr. Chiutsi was no longer on a fixed term contract and hence barring him from entering the company premises, this was unfair and a clear sign of victimization.

The employer acted in bad faith by refusing to be responsible for stopping Mr. Chiutsi from going to work while his matter was being dealt with in terms of the Code.

All issues raised as grievances by Mr. Chiutsi were not dealt with by all the committees that handled the case.

There was serious institutional bias from the onset of the matter.

This matter was treated as a misconduct case yet it was grievance raised by the employee.

The code of conduct was seriously flouted in favour of the employer.

Tenets of natural justice were not followed completely.

Respondent has filed a lengthy response summarized as follows:

The matter was prematurely referred to this Honourable Court since the Appellant had a duty to exhaust domestic remedies and did not profer any cogent reason why he failed to do so.

The grievance raised was that appellant was being forced to sign a fixed term contract. The hearing official and the Works Council ruled that he was not being compelled to sign a new contract.  It was noted that his contract of employment had elapsed and he refused to negotiate with respondent about the terms and conditions of the renewal.

This court should determine whether or not appellant was being forced to sign a new contract.

The issue of unfair dismissal was resolved at conciliation when appellant signed a certificate of settlement confirming he was not unfairly dismissed by respondent.

The appellant was never barred from reporting for duty by respondent.  The appellant stopped reporting for duty after the expiration of his contract of employment.

The appellant was misled into believing that after his contract was renewed by implication his contract of employment was upgraded to become one without limit of time.  Instead appellant’s contract of employment was renewed by way of tacit relocation.  It means the contract was renewed subject to the terms and conditions of the expired contract.

The conduct of the parties shows that, despite the absence of renewed written contracts, the parties did not intend to change the status of the relationship.  The appellant was on fixed term contracts.

Appellant has not proved that respondent violated the principles of natural justice as he was afforded the right to be heard by independent panels in terms of the grievance procedure outlined in the Code of Conduct.

The appellant’s failure to include a prayer in its appeal is fatal.

I agree with respondent’s submissions that there are really three issues to be determined which will deal with all the grounds of appeal and the responses.  These are:

Whether or not the failure by appellant to include a prayer to his appeal is fatal.

Whether or not the Appellant had the right to file an appeal in this court.

Whether or not the appellant proved his complaint against the respondent on a balance of probabilities.

Whether or not the failure by appellant to include a prayer to his appeal is fatal.

Respondent makes the averment that appellant omitted to include a prayer to his notice of appeal and merely stated the grounds upon which the appeal is based.  Further it is argued that it is mandatory that every appeal must be accompanied by a prayer containing the relief which is being sought by appellant.

A perusal of the notice of appeal filed of record in terms of the Labour Act [Chapter 28:01]  shows that appellant used Form LC3 of the Labour Court Rules and ticked certain sections where the form asks the appellant to state what relief they require from the Court. Appellant states he wants a reversal or setting aside of the decision, order or action appealed against and that if appropriate, the court should substitute its own decision.  Further payment of legal fees connected with the appeal is also ticked.  Appellant then refers the court to an attachment which details the grounds of appeal.  It is this attachment which is alleged to have no prayer.

I find therefore that appellant did not omit a prayer in his notice of appeal.  His prayer is clearly outlined in terms of the relevant form and as outlined in submissions before me.  The matters I was referred to by respondent are therefore distinct from this present case and not applicable as there is compliance with the relevant rules in casu.  The appeal is therefore not fatally defective.

Whether or not the appellant had the right to file an appeal to this court.

It is appellant’s argument that he acted in terms of the Code of Conduct by appealing to this Court as respondent had seriously flouted the Code, barred him from entering the company whilst ceasing his salary and benefits.  He alleges that he was treated as an offender yet he had a grievance.  Serious institutional bias by the respondent is also alleged.  In particular, appellant alleges that the different authorities did not deal with the matters he raised.

On the other hand, respondent argues that this court has no jurisdiction to hear this matter.  I was referred to clause 9 of the Code under the disciplinary procedure particularly:

Clause 9.4 which details stage 1 where the immediate superior is charged to initially deal with a grievance.

Clause 9.5 which details stage II where the Head of Department is the next level to handle a grievance.

Clause 9.6 which details stage III where the Works Council handles the grievance.

Clause 9.6.3 provides that stage III is the final stage at company level.

Reference was made to the case of Olivine Industries (Pvt) Ltd v Jack and Others SC 138/04 wherein in interpreting the code of conduct for Olivine Industries (Pvt) Ltd in respect to the grievance procedure it was held that;

“While the disciplinary structure states that the levels of authority have to follow the various steps up to the Head of Business and provides that an employee who is aggrieved with the final decision of the Head of Business can appeal to the Labour Relations Tribunal (the tribunal) the grievance procedure ends at the level of the Head of Business.  He makes the final decision and there is no provision for further appeal thereafter --- step 5 of the Code provides that the Head of Business (or his representative) shall make the final decision to resolve the matter if all the other steps have failed.  Section 63 provides for an appeal if the employee is not satisfied with the resolution of the grievance in steps 1 to 3.

The Respondents were aware of these provisions. -------- In the grievance procedures it was specifically provided that the decision of the Head of Business was final.”

In casu respondent argues the above case is on all fours with the Olivine Industries Code of Conduct.

Appellant however pointed me to clauses 9.2 and 10.2 of the respondent’s code.  Clause 9.2 provides for the procedure in general under the grievance procedure and has this chart

Clause 10.2 reproduces the same chart and provides that these are the hearing levels under the disciplinary procedure.

Whilst I agree with respondent that the Code of Conduct in casu has clause 10.6 which specifically provides that under the disciplinary procedure, a party aggrieved by a decision of the Works Council has the right to appeal to the Labour Relations Tribunal, there is no similar clause in respect to the grievance procedure.  I am however persuaded that this Code is distinct from the Olivine Industries (Pvt) Ltd one in that it shows the different levels, including those outside the company in the table in clause 9.2.  I am fortified in my reasoning by clause 9.6.3 which specifies that stage III at the Works Council “is the final stage at the company level”

In my opinion this implies that there are other levels outside the company.  This case is therefore distinguishable from that of Olivine Industries (Pvt) Ltd v Jack and Others SC 138/04.  I find therefore that appellant was within his rights in terms of the Code in bringing the matter before this Court.

Exhaustion of Local Remedies

Respondent argues that appellant is improperly before this court as he did not exhaust domestic remedies available to him in terms of the National Employment Council for the Soft Drinks Manufacturing Industry SI 138 of 2000 or to a Labour officer in terms of section 93 of the Labour Act.

I was referred to various cases including Muzengi v Standard Chartered Bank of Zimbabwe Ltd and ORS 2002 (1) ZLR 334 (5) and Girjac Services (Pvt) Ltd v Mudzingwa 199 (1) ZLR 243 (S) in support of the need to exhaust local remedies where these are available and capable of providing effective redress in respect of the complaint.

I wish to note that respondent has a Code of Conduct which binds both the appellant and its employees.  This code regulates both the disciplinary and grievance procedures.  As already illustrated above, there is both a tabular presentation and written clauses on the different levels to be followed in the case of a grievance.  Clause 9.6.3 clearly spells out that the domestic remedies end with the Works Council.  The table in clause 9.2 shows that the next level outside the domestic remedies is the Labour Relations Tribunal.

Further Clause 9.7 specifically provides that where the matter (in respect to a grievance) is not determined within 30 days from the date of the notification, the employer or employee may refer such matter to the Labour Relations Officer in terms of section 109 of the Labour Relations Act 16/85.

This matter is not one which was not resolved within 30 days and does not fall under clause 9.7

I find therefore that appellant did exhaust the domestic remedies as outlined in the code which is binding between the parties.

Did appellant prove his complaint against respondent?

Appellant’s complaint was that he was being forced to fill in a new contract of employment after the previous one had been terminated.  He wanted his superior to be stopped from this conduct and insisted he was still working on the old contract which was still in force.

The respondent’s responses at all stages were that appellant’s contract of employment had expired on the 13th March 2013 and was not renewed since he refused to negotiate new terms of renewal.  It was also pointed out that he had conceded at conciliation that his contract had terminated by effluxion of time.  The issue of unfair dismissal was therefore settled.

Respondent alleged appellant had never been forced to sign a new contract after his refusal to negotiate and sign a new contract.

I find from the record and submissions made the following;

The complaint of unfair dismissal was settled with appellant conceding he had not been unfairly dismissed.  That is not the issue brought up as a grievance.

Appellant was asked to regularize his employment by signing a fixed term contract before the expiry of his contract on the 13th March 2013.  Appellant refused to sign any new contract.

Appellant was consequently not allowed access to the company as he was not considered an employee.  This is what appellant construed as being forced to sign a new contract.

Respondent’s investigations established that appellant had not been forced to sign a new contract.  I agree with this finding.

Appellant’s grievances as outlined at all levels were dealt with by the relevant authorities.  There is no sign of these having been treated as misconduct cases. Rather clause 9 of the Code on Grievance Procedure was applied.

Appellant was given a right to be heard by all the prescribed levels in the grievance procedure. There is no merit in the allegation by applicant that he was denied his right of audience.  He only makes a bare averment of victimization of those seen talking to him and does not show how their misconduct cases were related to his grievance.

Appellant has misconstrued the Code where it provides the first level as the immediate superior to mean the same as immediate supervisor.  I find that the Human Resources Manager at the Conciliation stage was representing the company in the unfair dismissal matter as his job entailed and in the grievance procedure he was in the capacity of immediate superior.  Appellant’s argument of bias is not substantiated by the facts in the record.

I note too that there is always an element of institutional bias in labour matters.

The record shows the deliberations of the different stages.  These fall far from the alleged rubber stamping alleged by appellant.

I believe the real issue that appellant sought to bring up was that his contract had not lapsed but had evolved into a contract without limit of time.  That however is not what he brought as a grievance.  I deal with the issue below.

Tacit relocation of the contract?

Respondent made the argument that where a contract is for a fixed period, it will continue until the end of that period and then lapse automatically unless it is expressly or tacitly renewed --- If the old contract is renewed it will normally be presumed on the old terms unless there is evidence of a contrary intention  (see Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126 HC.

In casu, it is argued there was no intention demonstrated, of offering different conditions and so appellant remained on a fixed term contract which subsequently terminated by effluxion of time.

Appellant argues the respondent was casualizing his labour in terms of section 12 (3) of the Labour Act [Chapter 28:01].  I was referred to the case of Lifestyle Zimbabwe Furnishers v Andrew Mawapo and 295 Others LC/02/12 which held that there should be no casualization of labour where employees are placed on short fixed term contracts when work for permanent employment is available.

I find that there was tacit relocation of appellant’s fixed term contract.  Consequently he never graduated into a permanent employee.

I note too that appellant is only now bringing the issue of termination of his contract of employment as a grievance.  That was not the grievance brought before the internal structures.

Having already found that appellant ceased to be an employee of the Respondent on the 13th March 2013, there is no basis for considering this matter further.  The Labour Act is only applicable as between employers and employees.

Consequently the appeal is devoid of merit and is dismissed with costs.

Tandiri Law Chambers, Respondent’s legal practitioners