National Economic Consultative Forum v Dennis Takaidzwa Rwafa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/727/2013
HARARE, 11 NOVEMBER 2013
CASE NO. LC/H/727/2013
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/727/2013

HARARE, 11 NOVEMBER 2013	    		               CASE NO. LC/H/496/11

AND 17 JANUARY 2014

In the matter between:-

NATIONAL ECONOMIC CONSULTATIVE FORUM			Appellant

And

DENNIS TAKAIDZWA RWAFA						Respondent

Before The Honourable P. Muzofa, Judge

For Appellant 		-	Mr J. Mumbengegwi (Civil Division)

For Respondent		-	Mr Mukonoweshuro  (Legal Practitioner)

MUZOFA J:

This is a consolidated matter, an appeal against an arbitral award and a review of the same award.  The two matters were filed separately under case numbers LC/H/496/11 and LC/H/489/11.  An application for the consolidation of both matters was made.  This Court granted the application.

The background to this case is as follows:

The Respondent was employed by Appellant as Information and Documentation Officer on a contract for a period of three (3) years from July 2002.  The contract was to expire on 12 July 2005.  On the 29th of July 2005 Appellant wrote to Respondent advising him that the Board was still considering his contract however for the time being he was to continue working on the same terms and conditions of the expired contract except that he was to pay his tax.  On the 15th of October 2007 Respondent resigned before being offered another contract formally.  In 2008 the Respondent was re-engaged.  According to the Appellant Respondent was re-engaged on the same terms and conditions as of the July 2002 contract.  It was an oral agreement.  According to the Appellant the Respondent thereafter verbally communicated to Appellant his intention to resign in 2011.

Thereafter Appellant followed up this verbal communication by writing a letter in February 2011 accepting the verbal resignation and advising Respondent that on that note his contract will not be renewed.  During the period of this relationship Respondent’s salary which was in US dollars was eventually paid out in Zimbabwe dollars.  The salary was also reduced.  Aggrieved by the conduct of the Appellant Respondent approached the Ministry of Labour.  The matter went before an arbitrator who made a finding for the Respondent that he be paid salary and benefit arrears coupled with an order for reinstatement and an order for damages in the alternative.  Appellant dissatisfied by the order filed an application for review and an appeal against the arbitral award.

I will deal with the applications separately.

Review

Most of the grounds for review as outlined by applicant are also included as part of the grounds of appeal.  The issue of bias was raised.  The Applicant’s prayer was that the arbitral award be set aside and the matter be referred to be heard before a government arbitrator.

On behalf of the Respondent it was submitted that this court has no jurisdiction to review an arbitral award.  In terms of Section 89 (1) of the Labour Act Chapter [28:01] this Court has the same powers of review as would be exercised by the High Court in respect of labour matters.  The powers of review of the High Court are in accordance with Section 26 of the High Court Act.  Counsel for the Respondent relied on the case of NSSA v Chairman NSSA Workers Committee and Others 2002 (1) ZLR 306 for the proposition.  In that case the Court noted;

“An arbitrator’s award may not be taken on review in terms of Section 26 of the High Court Act.  That Section gives power to review the proceedings of inferior Courts of Justice, tribunals or administrative authorities.  An arbitrator does not fall within any of these categories”.

This proposition was not disputed by the Appellant.  I agree with the submissions made on behalf of the Respondent.  This Court is not empowered to review an arbitral award in so far as Section 89 (1)(d) of the Labour Act Chapter [28:01] as read with Section 26 of the High Court Act [Chapter 7:6] is concerned.

Accordingly the application for review cannot succeed and therefore there is no need to consider the grounds for review.

Appeal

The grounds of appeal come to the following;

The Arbitrator erred in making a finding that Respondent’s status was that of a permanent employee.

The Arbitrator erred in finding that there was a unilateral reduction of Respondent’s salary.

The Arbitrator erred in finding that the Appellant had unilaterally paid salaries in Zimdollars.

The Arbitrator erred in making a finding that the Respondent’s contract was improperly terminated.

I will deal with the grounds of appeal in turn.

Whether Respondent’s status was that of a permanent employee.

According to Respondent the contract of employment between the parties expired.  It was further submitted that from the 13th of July 2005 there was no contract between the parties, therefore the provisions of Section 12(3) of the Labour Act Chapter [28:01] applied.  The said section provides

“A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service shall be deemed to be a contract without.”

The Appellant submitted that the letter of 29 July 2005 stated the intention of the employer that Respondent was still employed on the same terms and conditions.  In relation to the letter it was Respondent’s view that the letter was of no force and effect since the contract had expired.

In my view the provisions of Section 12 (3) of the Labour Act are inapplicable in this case.  At inception of the contract between the parties it was clear that the intention was that the Respondent was on a fixed term contract.  Section 12(3) would only apply wherein at inception of the contract the period of engagement is not specified.  It cannot be applicable in a situation where parties were already in an employer-employee relationship.  I am persuaded by the submissions for the Appellant.  The parties reverted to be governed by the unrenewed contract and this proposition finds favour in the case of Gumbo v Air Zimbabwe 2000 (2) ZLR 126 H where Chatikobo J had this to say in a similar case at 130.

“… finally the best that can be said for the applicant is that in certain cases akin to the present, there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period without agreeing new terms, there is a tacit relocation of the expired contract on the same terms and for the same duration”.

By arguing that the Respondent became a permanent employer, it means importing a tacit term into the relationship between the parties since it was not part of the initial contract.  In the case of Pan American World Airways Inc v SA fire and Accident Insurance Co. Ltd 1965 (3) SA 150 at 175C, It was held

“when dealing with the problem of an implied term, the first enquiry is, of course whether regard being had to the express terms of the agreement, there is any room for importing the alleged term”.

In casu, at inception of the relationship it was clear that the contract was for three years.  After its expiration on the 12th of July 2012 can it be imported that there was a contract of unlimited duration?  I donot believe so.  I say so because Appellant’s intention can be deciphered from the letter to Respondent dated 29 July 2012, some 17 days after the expiration of the contract.

The letter clearly stated

“… The Board is still to consider the matter of contract renewals for National Economic Consultative Forum staff … conditions of service of your contract will apply with the exception of a tax free income status.”

The Appellant envisaged Respondent to be engaged on a contract basis.  For Respondent to argue that there was a new contract is contradictory.  This is so because all the other terms and conditions of the first contract are acceptable to him, it is the part that limits the period that he does not accept.  There is no justification, for this selective application of the terms and conditions.  The case of Kazembe v The Adult Literacy Organisation S173/94 is clear on the effect of such;

“It is true that they only notified him of their dissatisfaction with his work on 9 September 1991 some nine days after the conclusion of the probationary period but I donot see how this helps the applicant.  It certainly cannot be implied that he had automatically been placed on permanent staff.  That was not a term of his letter of appointment dated 31 May 1991. That letter does not intimate that at the end of the period of three months probation he would become a member of permanent staff unless advised to the contrary.  The fact that they took time to notify him that they wished to extend his period of probation due to the unsatisfactory nature of his performance cannot be taken as an indication that he had automatically become a permanent member of staff.  To hold otherwise would be nonsensical”.

The Arbitrator in coming to his decision noted that Respondent worked from 2005 up to 2011, six years was long enough for one to assume they were a permanent worker.  What the Arbitrator missed is a factual point that Respondent resigned in 2007 and was re-engaged in 2008.  So there was a break in the service period.  In 2008 there was a new contract, which was on the same terms and conditions as the 2002 contract.  At the time of leaving employment it was almost the completion of the first contract.  I fully subscribe to the tenets of the Kazembe case.  Respondent was not a permanent employee he was a worker on contract.  There is no room to import a tacit term that he became a permanent worker.  It was not specifically argued that Respondent had not submitted a verbal resignation. To this end the termination of the contract cannot be said to be unlawful.

Reduction of salaries

According to the Appellant the reduction of salaries was not unilateral.  A circular inscribed circular 1/11/2006 was circulated to all staff members advising them of the proposed reduction.  The circular invited all persons with queries to see the Executive Secretary and that those dissatisfied could resign.  It was submitted that from November 2006 Respondent received the reduced salary without any objection and therefore had accepted it and relied on the case of Bremer Mclens (Edms) Bpk v Floras 1996 (1) Pit A36A for drawing an inference from the conduct of parties.

For the Respondent it was argued that the contract between the parties provided that all variations should be written and signed by both parties.  This was not so.  In addition the circular relied upon by Appellant was undated, and unsigned therefore not authentic.  It was further argued that Respondent did not see the circular and therefore could not have raised any objections to it.

It is difficult for this court to fully appreciate Respondent’s submissions.  If indeed he did not see the circular 01 November 2006 how is it he continued to receive the reduced salary without any objections.  There was no evidence proffered to this court of any objection to the said reduced salary either resulting from the circular or the actual salary received.  What is striking in this case is that Respondent resigned in 2007.  There were no issues in terms of the reduced salary.  Respondent was re-engaged in 2008 I believe on the same salary.  He accepted the offer.  I donot find any basis on which Respondent can try to turn to the court to salvage some monies from Appellant.  Respondent only filed a claim after the contract between the parties was terminated whether illegally or otherwise.  The law provides for one to enforce their rights even for continuing unfair labour practices.  Respondent did not enforce such rights.  The claim by Respondent emanates from a cause of action which arose in 2006 yet he tried to enforce it in 2011.  Neither of the parties raised the issue of prescription.  From the conduct of the Respondent I am inclined to agree that there was a tacit agreement to the reduction of the salaries as submitted for the Appellant.

This ground of appeal succeeds, there is no basis for a finding that the reduction of salaries was unilateral. Respondent was fully aware of the reduction and for the contract in 2008 he accepted the offer of the reduced salary.  It is interesting to note that the Respondent relies on the contract of 2002 for the salaries, yet the condition of the fixed term he does not want to be bound by it.  There is no way Respondent can blow hot and cold, its either the 2002 contract was applicable or inapplicable to him in its entirety.  It is this court’s finding that the said contract applied to him in 2011 in its entirety.

That there was a unilateral change in the currency.

I think the same argument above still subsists to this ground of appeal.  There are two circulars one inscribed 1 August 2005 and another one inscribed Circular 1 June 2007.  Indeed both circulars were not signed by the Executive Secretary.  Maybe there could be doubts on its authenticity.  However if thereafter the employees received their salaries in Zimbabwean dollars as opposed to the United States dollars even without having had sight of the circular there was room to file objections.  There is no evidence of such objections from Respondent.  Respondent resigned in 2007. It is not clear whether the circular 1 June 2007 had been issued.  Respondent was re-engaged in 2008, according to the circular then at inception his first salary was in Zimbabwean dollars.  The Respondent continued to receive the salary up to 2011 a period in excess of two and half years.  By such conduct the court can only infer that the Respondent consented to the change in the currency of payment.  I donot find again any basis to make a finding otherwise.  This ground of appeal succeeds.

In view of the foregoing clearly the appeal succeeds in its entirety.  Accordingly the following order is made.

The appeal be and is upheld, the Arbitrator’s award be and is hereby set aside.

Each party to bear its own costs.

Civil Division – Appellant’s Legal Representatives

Mukonoweshuro & Partners – Respondent’s Legal Practitioners