Municipality of Marondera v P. Ruzvidzo & 51 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/779/2014
HARARE, 04 & 21 NOVEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/779/2014

HARARE, 04 & 21 NOVEMBER 2014		           	        CASE NO. LC/H/459/14

In the matter between:-

MUNICIPALITY OF MARONDERA				Appellant

And

P. RUZVIDZO & 51 OTHERS					Respondents

Before The Honourable F.C. Maxwell, Judge

For Appellant		Ms R. Bwanali (Legal Practitioner)

For Respondents		Mr. T. Mafongoya (Legal Practitioner)

MAXWELL, J:

Respondents were employed in various capacities by Appellant on fixed term contracts.  The contracts were periodically renewed until 29 October 2013.  The number of times the contracts were renewed is not the same for the Respondents as they were engaged on different dates.  When the contracts expired on 29 October 2013 they were not reviewed.  Respondents approached the Ministry of Labour claiming legitimate expectation for the renewal of the said fixed term contracts of employment.  The claim was also based on a Council resolution to the effect,

“That all contract employees who served Council for more than six months be engaged permanently and that the list of those contract workers be availed to Council as a matter of urgency.”

Appellant alleges that the resolution was not communicated to the Respondents.  The matter went for conciliation but was not settled.  It was subsequently referred to arbitration.  On 23 April 2014 honourable Arbitrator Gama found in favour of the Respondents.  On 30 May 2014 Appellant noted an appeal in this court.  The grounds of appeal are;

The Arbitrator erred in finding that the other 51 claimants who had not instituted the originating action were properly before him.

The arbitrator misdirected himself and erred in making an “extra curial” ruling allowing the leading of evidence after the parties had made out their respective cases and such directive being at variance with the agreed terms upon which the arbitration was being conducted.

The arbitrator erred in coming to the conclusion that a fixed term contract could mutate into a permanent contract on the basis of its renewal notwithstanding (i) a clause in it excluding any expectation of employment and (ii) the different circumstances of the “claimants” which the arbitrator did not relate to.

The arbitrator further erred in coming to the conclusion that the cause before him had not been exhausted by a prior definitive finding in a dispute between the parties.

In response Respondents stated that the first ground did not raise a question of law and the second ground had no merit.  Respondents further stated that the third ground misconceived the essence of the arbitrator’s ruling as he did not conclude that the fixed term contracts had mutated into permanent contracts.  They alleged that he held that there had been an unfair dismissal as contemplated by section 12 B (3) (b).  As regards the fourth ground of appeal, Respondents submitted that it was devoid of merit as it seeks to revive an argument which Appellant had abandoned in proceedings a quo.

It is trite that an appeal is dealt with on the papers on record.  For that reason I find no merit in the first ground of appeal.  Appellant’s contention that there were no claimants or parties before the arbitrator is not borne out by the record of proceedings in the Arbitral Tribunal.  Page 19 of the record (page 3 of the Arbitral Award) has the following statement.

“The full list of claimants is well known to the Respondent …..  The full list will be produced again at the oral hearing.”

(Underlining for emphasis)

Page 20 of the record confirms that the list was produced during the hearing.  That confirmation reflects what is on page 46 of the record, The Arbitration Hearing Minutes of 14 March 2014.  The following statements are enlightening.

“Some employees were reinstated.  Now there are fifty-two (52) claimants.

By consent – list is admitted

Employer is given leave to file written submissions by 1 March 2014 on the issue whether or not the mentioned persons are former employees.

Employees may respond by 28 March 2014 to the employer’s written submissions.“

(Underlining for emphasis)

The said minutes therefore explain how the Arbitrator ended up listing the Respondents on the award.  The list of names was submitted by consent. None of the parties disputed the accuracy of the minutes that are on record.  The first ground of appeal therefore cannot stand.

Turning to the second ground of appeal Appellant argues that the Arbitrator erred at law by allowing the leading of evidence outside the terms of reference and requirements of Article 23 of Model Law.  On page 21 of the record (page 5 of award) the Arbitrator states that he had to allow the claimants to place the important information before him within the parameters and confines of the law.  By letter dated 25 March 2014 the Arbitrator invited the parties to supplement or amend their claim, evidence or response in accordance with paragraph 2 of Article 23 of the Model Law.  The Claimants were given up to 1st April 2014 and the Respondent up to 8 April 2014.  This letter is on page 76 of the record and is quoted on page 20 (page 4 of award).  The letter is addressed to Respondents’ legal practitioners and a copy was sent to the Appellant’s legal practitioners.  The Arbitrator states on page 21 of the record (page 5 of the award) that any prejudice caused to the employer would be cured by allowing it to supplement its own evidence or respond to the supplementary evidence.  It seems to me that while Respondents took up the opportunity availed by the Arbitrator, the Appellant did not respond to the supplementary submissions.  In my view the Arbitrator exercised his discretion and made provision that would ensure no prejudice to either party.  His conduct on that basis cannot be faulted.  In any event Appellant did not dispute that the letter of 25 March 2014 was copied to it.  The second ground of appeal also fails.

The Appellant faults the Arbitrator for finding that a case had been made in terms of Section 12 B of the Labour Act [Chapter 28:01].  The Arbitrator held that presence of a clause in the fixed term contract that the employees would not be re-employed on its expiry was immaterial as the contracts had been renewed several times in the past.  In his view the claimants’ expectation of renewal of their fixed term contracts on account of regular practice was reasonable.  In the case of Kundai Magodora and Others v Care International Zimbabwe SC-24-14 it was stated that requirement of a legitimate expectation in section 12 B (3) (b) is patently conjuctive with the concomitant engagement of another employee.  The Arbitrator tries to distinguish the UZ-UCSF Collaborative Research Programe in Women’s Health v Shamuyarira SC-10-10 from the present case.  In my view there is no distinction between the cases.  In both cases the contracts that were renewed contained a provision that the renewal would not give rise to a legitimate expectation to be re-employed.  As was stated in the case of Magodora and Others v Care International Zimbabwe (supra) “it is not open to the courts 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 ….. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

The Arbitrator relies on the affidavit of Faith Mutizwa as proof that other persons were employed in the Respondents’ places.  In my view that position is erroneous as the affidavit does not provide proof for all the Respondents if it was to be relied on.  There are 52 Respondents in this matter.  The Arbitrator says the affidavit lists 43 persons who allegedly took over from claimants.  The affidavit is on pages 67-70 of the record.  It lists eight categories in which named people are employed.  These are;

Parks and Gardens				9 persons

Roads						9 persons

Public health					8 persons

Sewer						2 persons

Digging Grave Yard				1 person is named and there are 4

Others and one Kamusasa as the contractor.

Billing						7 persons

Pump station					1 person

Security					1 person

In my view the 4 others listed in category 5 above cannot be counted as they have not been named.  Failure to name them in my view, is proof of failure to prove their employment in place of Respondents.  The result is 39 persons are named as having replaced 52 employees.  The affidavit surprisingly is concluded by the statement.

“It is clear to me that every position of the Claimants has been filled.”

That cannot be true since the list provided does not tally or square off with the number of employees alleged to have been replaced.  For the Respondents to succeed in proving that other persons were employed in their stead, in my view, there is need for proof on an individual basis that someone was employed to carry out the functions carried out by each and everyone of them.  I find therefore that the Arbitrator’s finding on this aspect cannot be supported.  The ground of appeal therefore succeeds.

The last ground of appeal raises the issue of res judicata. Appellant alleges that on 12 July 2013 the Zimbabwe Urban Council Works Union raised a similar claim against it.  The matter was placed before Arbitrator Gohodzi who issued an award in Appellant’s favour.  The issues in dispute in that award had been

Whether there has been casualisation of labour.

Whether or not the complainants have a legitimate expectation of being engaged permanently.

Respondents argued that the arbitrator proceeded on the basis of the concession made by the legal practitioner for appellant.  Since no appeal can lie against a decision made on the basis of a concession the ground is frivolous.  Respondents further stated that the requirements for res judicata are not met as the parties were different.

I find the conduct of the Respondents to be a cause for concern.  Whilst it is true that the parties in the hearing before Arbitrator Gohodzi were not the same as those before Arbitrator Gama.  I find the distinction immaterial.  The Respondents were represented by a trade union in the previous matter.  In that case they requested the Arbitrator to decide on the issue whether or not they had legitimate expectation to be engaged on a permanent basis.  They also wanted a finding on whether or not there was casualisation of labour by the Respondent.  If the question of casualisation of labour was answered in their favour, in my view they were seeking to be engaged on a permanent basis.  On both issues before Arbitrator Gohodzi, the remedy sought was a declaration that they are permanent employees of the Appellant.  The trade union was represented by the Respondents’ current legal practitioners.  I dismissed the appeal for that matter on 28 February 2014 under reference LC/H/113/14.  In the matter before Arbitrator Gama, Respondents sought the remedy of reinstatement without loss of salary and benefits.  It boggles the mind how such a remedy would be possible in the face of an expired fixed term contract.  When all is said and done Respondents have tried to have a second bite of the cherry.  They are seeking the same remedy they sought previously whilst being represented by a trade union.  Such conduct is deplorable and cannot be allowed.  I therefore find that there is merit in the last ground of appeal.

Resultantly the appeal succeeds and I make the following order.

The first and second grounds of appeal be and are hereby dismissed for lack of merit.

The third and fourth grounds of appeal, being meritorious, be and are hereby upheld with costs.

The Award by Honourable K. Gama date 23 April 2014 be and is thereby set aside and substituted with the following.

The matter is res judicata

The claim be and is hereby dismissed with costs.

MBIDZO, MUCHADEHAMA & MAKONI, Appellant’s legal practitioners

MATSIKIDZE & MUCHECHE, Respondents’ legal practitioners