Municipality of Marondera v Anyway Tafirei & 11 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/518/2016
HARARE, 20 JUNE 2016
CASE NO. LC/H/45/15
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/518/2016

HARARE, 20 JUNE 2016			     	    CASE NO. LC/H/45/15

AND 9 SEPTEMBER 2016

In the matter between:-

MUNICIPALITY OF MARONDERA					Appellant

And

ANYWAY TAFIREI & 11 OTHERS					Respondents

Before Honourable L. Hove, Judge

For Appellant	Mr B. Pesanai (Legal Practitioner)

For Respondents	Mr T.J. Mafongoya (Legal Practitioner)

HOVE, J:

The respondents were employed on fixed term contracts which were not renewed when the contracts expired.

They claimed unfair dismissal and argued that they had satisfied the requirements set out in terms of Section 12B (3) (b) of the Labour Act [Chapter 28:01] which provides that an employee on a fixed term contract is to be regarded as unfairly terminated if the contract is not renewed upon its termination when the employee had;

A legitimate expectation to be re-engaged, and;

Another person was engaged instead of the employees.

They argued that the case of UZ – UCSF vs Shamuyarira SC 10/10 also makes the same requirements that an employee has the onus to prove, firstly that he had a legitimate expectation to be re-engaged and secondly that another person was engaged in his stead.

The employer argued that the employees failed to show or prove that they had a legitimate expectation.

The Supreme Court case of Magodora Kundai and Ors v Care International Zimbabwe SC 24/14 made the point that it had made in several other earlier decisions like UZ-UCSF Collaborative Programme in Women’s Health v Shamuyarira SC 10/10 that continued renewal of a fixed term contract over a period of time does not give rise to legitimate expectation for the renewal of a contract.

The position was also re-emphasized that the contract will automatically terminate by effluxion of time.

This position by our Supreme Court makes untenable the position in Corbelt CJ in Administrator Transvaal vs Traub (1989) 10 ILJ 823 A when that court stated the following;

“the implication of the doctrine of legitimate expectation is that if a decision maker, either through the application of a regular practice or through an 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 decision in Mabunda vs Care International Zimbabwe LC/MD/20/09 by honourable Takuva J cannot take precedence over the Supreme Court decisions that state that continued renewals is not sufficient to induce one to legitimately expect to be re-engaged.

The arbitrator held that the evidence placed before him show that other persons were employed in place of the respondents.  The court has no basis to interfere with that factual finding by the arbitrator, see Hama vs National Railways of Zimbabwe. But that in itself is not sufficient to show that they were unfairly dismissed.  The employees had to show that they also had a legitimate expectation.

The arbitrator misdirected himself when on page 20 of the record he states that “legitimate expectation can be justified when there is a renewal of the contract on 1 or more occasions.

The Supreme Court has stated that past practice does not suffice.

Having found that the arbitrator had misdirected himself on this aspect, it follows therefore that the respondents did not manage to satisfy the requirements of Section 12B by showing that they had a legitimate expectation.

Under these circumstances, the appeal can only succeed. The following order is made;

The arbitral award is set aside.

The employer’s decision to terminate is confirmed.

Each party will bear its own costs.

Messrs IEG Musimbe & Partners, appellant’s legal practitioners

Matsikidze & Mucheche, respondents’ legal practitioners