MSF Belgium v V. Nhopi & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/70/15
HARARE ON 16th OCTOBER, 2014
CASE NO. LC/H/478/14
AND 6 FEBRUARY, 2015
JUDGMENT NO. LC/H/70/15
---------




IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/70/15

HARARE ON 16th OCTOBER, 2014			              CASE NO. LC/H/478/14

AND 6th FEBRUARY, 2015

In the matter between

MSF BELGIUM			–	Appellant

And

V. NHOPI & 11 OTHERS		–	Respondents

Before The Honourable L. Hove, J.

For Appellant      :	Ms P. Chakasikwa (Legal Practitioner)

For Respondents :	Ms K. Zinyemba (Legal Practitioner)

HOVE, J.

This is an appeal against the decision of an Arbitrator who found that the Respondents were dismissed in a manner which contravened the provisions of Section 12(B)(3) of the Labour Act [Cap 28:01].

The background facts are that the employees were employed by the Appellant organization which is an International non-profit, non-governmental organization.

The employees were employed on fixed term contracts. When the contracts expired, the contracts were not renewed. The employees were invited to interviews but other people were engaged instead of them. The Appellant argues that the contracts of employment were lawfully terminated by efluxion of time.

The employees submitted that they had a legitimate expectation to be re-engaged and other persons were engaged instead of them.

The Appellant argues that there was no basis for the Arbitrator to find in favour of the Respondents since their contracts of employment had expired. The employer-employee relationship was terminated lawfully due to efluxion of time.

The issue for the Court to decide is whether or not the Arbitrator was wrong in her findings that the Respondents had a legitimate claim for unfair dismissal and had legitimate expectation to be re-engaged.

The basis of the claim is Section 12B(3) of the Labour Act [Cap 28:01] (the Act). The sections provides as follows:

“(3) 	An employee is deemed to have been unfairly dismissed –

----

if, on termination of an employment contract of fixed duration, the employee –

had a legitimate expectation of being re-engaged, and

another person was engaged instead of the employee.”

The facts as agreed by both parties were that other persons had been engaged instead of the employees. This is accepted by both parties.

The Appellant argued initially that the engagement of other persons instead of the Respondents was because the Appellant had opted against re-engaging the Respondents to promote the communities where they were operating by employing other people from those other communities.

In submissions placed before me in the Heads of Argument by the Appellant, it was submitted that the engagement of other employees, were after the Respondents had been lawfully terminated by efluxion of time at that point the employer was under no obligation to engage the Respondents. It was submitted that the funding for the projects sites at which the Respondents were employed was not secured. The projects site was Harare.

The record however clearly showed that the employer opted against re-engaging the Respondents because it wanted to support other persons in the project sites they were now operating in.

This reason does not remove the obligation from the Appellant to re-engage the persons already under its employment. Once the Respondents are able to show that other persons were employed instead of them then they have satisfied the 2nd wrung of the requirements under Section 12 B(3)(b)(ii). The employer may have had good reasons but once he engages other persons, the legal requirement is met.

The first wrung also has to be satisfied if the Respondents are to be successful because the two requirements are cumulative, both must be satisfied.

The question that then arises is, were the provisions of Section 12 B (3)(b)(ii) satisfied? i.e. did the Respondents have a legitimate expectation of being re-engaged?

The law is clear, the expectation to be re-engaged must be a reasonable one and must be validly held.

In the case of PTC v Managerial Employees Workers Committee 1998 (1) ZLR 444 (H) the Court stated that;

“It has been said that legitimate expectations include expectations which go beyond enforceable rights, provided they have some reasonable and rational basis.”

To be successful therefore, the Respondents are required by law to have some “reasonable and rational basis” for holding that expectation to be re-engaged.

In Administrator Transvaal v TRAUB (1989) 10 ILJ 823 it was stated that;

“If a decision maker ---- through express promise, leads those affected legitimately to expect that he or she will decide in a particular way then that expectation is protected and the decision maker cannot ignore it when making the decision. The doctrine it seems, applies to both procedural and substantive expectations.”

The Legal Practitioner for the Appellant went at length to argue that renewals do not give rise to a claim for legitimate expectation. This issue does not arise in casu as the Arbitrator accepted the argument on behalf of the employer that;

“It is respectfully submitted that in this jurisdiction, the courts have well settled that prior renewals do not lead to a legitimate expectation.”

The cases of;

Lifumbe v Stanbic Bank of Zimbabwe Limited LRT /H/46/98 and

Phineas Kambarami v TM Supermarkets LC/MC/09/10

were cited to support the position that in our jurisdiction the courts have rejected that constant renewals can give rise to a legitimate expectation. That issue is therefore not before the Court.

The Arbitrator found that the employer’s act of inviting the Applicants for interviews for the positions they had held is the act, that gave the Respondents an expectation that they would be re-engaged. The positions they had occupied were available and the employer was continuing with it business. The employer’s actions of inviting them to come for interviews gave rise to the legitimate expectation. That was the Arbitrator’s reasoning in considering the facts which had been placed before him. Was it reasonable to expect an employer who invites you to attend an interview for the position you had successfully held to re-engage you? The Arbitrator found that this was a reasonable basis for the expectation to be re-engaged.

This Court is not authorized to interfere with factual conclusions made by Arbitrators. An appellate court can only interfere with the Arbitrator’s discretion if it can be shown that the conclusion by the Arbitrator was grossly unreasonable. Such is not the case here. This Court cannot itself look at the facts and decide that it could come to a different conclusion unless there was gross irrationality. There was none here.

The Arbitrator, in assessing the circumstances of the facts placed before her found that the expectation held by the Respondents was a reasonable one. She found therefore that the requirements under Section 12B(3)(b) were both satisfied.

I am also of the view that the expectation held by the Appellants was a reasonable one. The employer had provided that these were fixed term contracts and they were not to be renewed. Then at their expiration, he invites them to apply again for the same positions, it was reasonable under the circumstances to expect to be re-engaged.

The case cited by the Appellant’s representative in their Heads of Argument by HONOURABLE JUDGE CHIVIZHE is clearly distinguishable from the present one. In that case, Pact Zimbabwe v Sheilah Makwirazhou LC/H/21`8/07 the Honourable Judge stated that if an employee is reminded in advance that his contract is not going to be renewed, them such notification or reminder destroys any flicker of hope of the existence of a legitimate expectation.

In casu the employer actually invited the Respondents to attend interviews actually reviving hope instead of destroying as in the other case.

The Applicant argues that the Applicants were not employed for the same site. The Respondents in their submissions submitted that while in their previous contracts, they had been asked to work outside Harare. The issue of employment in or outside Harare cannot be an issue once the two requirements have been met.

In the result, I find that the Arbitrator did not misdirect herself on the issue of whether or not the requirements of Section 12B (3) (ii) were met.

Turning to the last ground of appeal, the fact that the Arbitrator awarded damages without hearing evidence in support of the awarded damages.

Damages must be proved. I do not see the Respondents arguing that they proved their damages, that any evidence was led.

The Arbitrator ought to have heard evidence in support of the claim  for damages if reinstatement was no longer tenable.

The matter ought to be remitted to her for her to hear evidence as to how much damages are payable for each of the Appellants.

I accordingly make the following order;

The arbitral award is upheld except as it orders the payment of one year’s salary as damages to each Respondent in lieu of reinstatement.

The award is amended in the last part to read as follows:-

Alternatively if reinstatement is no longer tenable the employees are to be paid damages as will be agreed between the parties. Should the parties fail to agree on the damages, either of the parties can approach the Arbitrator for quantification.

Kantor and Immerman – Appellants legal practitioners

Lawman Chimuriwo Attorneys at Law – Respondents legal practitioners