Nepias Chabuda VS Design Craft

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/307/2016
HARARE, 16 MARCH 2016 &
13 MAY 2016
CASE NO LC/H/1061/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/307/2016

HARARE, 16 MARCH 2016 &				       CASE NO LC/H/1061/2015

13 MAY 2016

In the matter between

NEPIAS CHABUDA								APPELLANT

Versus

DESIGN CRAFT								RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	In Person

For the Respondent    W Madzimbamuto (Legal Practitioner)

MUCHAWA J:

This is an appeal against an arbitral award.

The appellant was offered the position of sales executive by the respondent on 1 March 2012, effective from 5 March 2012. The offer was subject to a three months probationary period.

It appears that from 1 August 2012 to 31 August 2013, the appellant was then put on one month fixed term contracts. His role then was variously described as “sales and marketing”, “marketing”, “sales executive”(May, June 2013 contract), “marketing executive”(April 2013 contract).

The initial salary offered in the 1st March 2012 offer letter was $200-00 with a sales commission of 3% based on the gross sale. The monthly contracts however then offered a salary of $230-00.

It further appears that in or about June 2014, the appellant was disgruntled by non-payment of salaries from December 2013 and he lodged a complaint with the Ministry of Labour. Following non-settlement of the broader dispute, the matter was referred to arbitration. The following were the terms of reference before the arbitrator.

Determine whether or not employee’s contract was ever terminated.

Determine the complainant’s job title.

Whether or not employee is owed salary arrears, commissions, allowances and leave pay.

Quantum thereof.

Appropriate remedy.

The arbitrator made the following findings:

“Evidence produced clearly shows that claimant was employed on three months’ probation and that on 8th June 2012 it was extended to 1 August 2012 due to unsatisfactory performance. Thereafter the claimant was offered the lower post of assisting the sales office which post was a monthly based contract post. In my view this is decisive. I am persuaded that claimant signed the monthly contracts on the new job title until the time he decided not to renew. He is however entitled to his outstanding leave days. In the circumstances I award as follows:-

Claimant did not renew the monthly contract after December 2013, he was not constructively dismissed but he is owed $200-00 outstanding leave.”

The appellant has filed the following grounds of appeal before me:

The Honourable Arbitrator erred on a point of law by contravening the Labour Act, [Chapter 28:01] section 12 B, which reads …….

The learned Arbitrator erred on a point of law by dismissing the fact that the appellant was constructively dismissed ….. in this case the non-payment of salaries, transport and food allowances, leave pay and sales commissions was sufficiently bad that the appellant was entitled to regard himself as having been dismissed.

The honourable Arbitrator misdirected himself on a point of law by failing to comprehend the legal and binding implications of the doctrine of quasi mutual assent …

4.(a)  	The arbitrator misdirected himself by contravening section 12 (5) of the Labour Act. It is trite of our law that probation is once off and non-renewable and it cannot be extended …

4. (b)	By his own admission, the respondent unilaterally varied the appellant’s contract of employment and claims it is the company policy to do so. Such a unilateral act by the respondent violates the principles of natural justice of equity, reasonableness, fairness and certainty.

5.	The Honourable Arbitrator did not apply his mind in concluding the matter. He acknowledged that I was made to sign monthly contracts for a year, which at law is casualization of labour …

The appeal is opposed and I deal with each ground in turn below.

Grounds 1 and 2 – Constructive dismissal

Ground 1 of appeal merely quotes section 12 B (3)(a) of the Labour Act which reads:

“(3)	An employee is deemed to have been unfairly dismissed – (a) if the employee terminates the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee.”

As correctly argued by Mr Madzimbamuto, counsel for the respondent, this ground does not state how the arbitrator erred in the matter in casu.

As stated in Herbstein and Van Winsen, The Civil Practice of the High Court of South Africa 5th ed Vol 2 at p 1158 it was held:

“It has been held that the grounds of appeal … must be clearly and succinctly set out in clear and unambiguous terms so as to enable to court and the respondent to be fully informed of the case which the applicant seeks to make out and which the respondent is to meet in opposing …”

For the above reason the first ground of appeal is struck off on account of being vague.

The appellant proceeds to state in ground 2 of appeal that the arbitrator should not have dismissed the allegation of constructive dismissed due to non-payment of salaries, allowances, leave pay and commission.

It is argued by the respondent that the issue of constructive dismissal was not argued before the arbitrator and is not even contained in the arbitral award. Further, it is argued that the arbitrator cannot be faulted for failing to consider an argument not raised before him. (See Chikanda v TC SC 7/99).

A perusal of the appellant’s statement of claim before the arbitrator from record page 33 shows that on page 35 under the term of reference whether or not the employee’s contract was ever terminated, the appellant quoted section 12B (3) of the Labour Act in alleging constructive dismissal and pointed to the following as factors that made his continued employment intolerable.

Unilateral variation of contract of employment.

Decreasing transport and food allowance from $50-00 per week to $5-00 per week.

Withholding salary, commissions and transport and food allowances from December 2013 to June 2014 leading to inability to report for work.

In response to this allegation, the respondent in its response before the arbitrator, record page 19, noted:

“The argument that the claimant was constructively and unfairly dismissed is clearly misplaced in the circumstances of this case.”

Further, on record page 14 in claimant’s replication, he persists with the constructive dismissal argument.

The arbitrator, in the operative part of his award, makes a finding that the appellant was not constructively dismissed.

The respondent’s argument that the issue of constructive dismissal was not before the arbitrator is clearly misplaced as it is not supported by the record.

The argument that the issue of constructive dismissal was not part of the terms of reference before the arbitrator is dismissed as this issue flows from a determination of whether or not the employee’s contract was ever terminated.

I will deal with the question of whether or not the appellant was constructively dismissed, relative to the remaining grounds of appeal.

Ground 3  - the doctrine of quasi mutual assent

The appellant quotes from an unidentified source regarding the doctrine of quasi mutual assent as follows:

“If a party by his own words or conduct leads another party to believe that he was assenting to the terms proposed by him and the party upon that belief enters into a contract with him, the man thus conducting himself would be equally bound as if he had intended to agree with the other party’s terms. This is also anchored on the doctrine of sanctity of contract that holds parties to a contract to honour their obligations in terms of it.”

It is then argued that the arbitrator should have found that the appellant is owed a sales commission of 3% based on the gross sales as specified in the contract of employment dated 5 March 2012.

Mr Madzimbamuto argued that the appellant did not seem to comprehend the meaning of the doctrine of quasi mutual assent.

The factual findings of the arbitrator, based on evidence submitted to the arbitrator which the appellant was disputing are said to be unassailable. These are that the appellant failed the probation and was given a lesser post with a specific fixed term contract which was materially different from the initial offer.

I was urged not to lightly interfere with the factual findings of a lower court unless there is a serious misdirection on the facts.  (See Barros & Anor v Chimphonda 1999 (1) ZLR 58 (S), Hama v NRZ 1996 (1) ZLR 664.

The appellant disputed the authenticity of two letters produced before the arbitrator. One is a letter dated 8 June 2012 which is worded as follows:

“Re: EMPLOYMENT CONTRACT

Further to our engagement of 1 March 2012 with a three month probation period, kindly be advised that we are yet to see results for your work.

We are however giving you another two (2) months grace period to allow both parties to review progress in this regard. Thus your probation period will now end on 31 July 2012. …”

The second is a letter dated 1 August 2012. It reads:

“Re: EMPLOYMENT CONTRACT

Our employment engagement of 1 March 2012 and our assessment letter dated 8 June 2012 refers.

We note with regret that despite affording you extra probation period results have not been forthcoming hence we have concluded that you have failed to meet expectations with regard to the said post.

However, we have decided to offer you a less challenging post of assisting our sales office with the distribution of quotations and any other marketing material. This post is a monthly based contract hence you shall be required to sign monthly contracts from now onwards as acceptance of this post for the particular month.

Please note that your contract shall only be active for a particular month if you have signed a contract form. If there is no signed form the contract shall be deemed dormant and no dues shall be claimed.

Your gross salary shall remain $200-00 (two hundred dollars) subject to the organisation’s general salary review.

We trust you shall find the above as a positive compromise.”

The appellant questions why only these two letters were not written on letter head and denies ever having received such letters.

The arbitrator simply accepts the respondent’s version of events without explaining why that is the more plausible version.

A closer look at the monthly contracts from 1 August 2012 will show that the contract actually increased the appellant’s salary from $200-00 to $230-00. Further that the role in which the appellant was employed, is not described as an assistant post. I have already observed above that he is referred to variously as “sales and marketing”, “marketing” and curiously reverts to the title marketing executive in April 2013, then sales executive in May and June 2013.

In the circumstances, in the light of the contracts before him, the arbitrator reached a conclusion contrary to the evidence before him. The evidence shows that the respondent switched over to the monthly contracts from 1 August 2012 to August 2013. Such contracts no longer had the clause relating to the appellant’s entitlement to sales commission of 3% based on the gross sales. The appellant however wants to enforce this entitlement to sales commission.

Unfortunately the very doctrine the appellant wishes to rely on, of quasi-mutual assent works against him. By signing monthly contracts for a year, accepting the new salary of $230-00, the appellant by his written words and conduct led the respondent to believe that he was assenting to the terms proposed by the respondent. They proceeded to contract and renewed such contracts for a year with no protest from the appellant. This court has to uphold the doctrine of sanctity of contract in respect to the monthly contracts. (See Kundai Magodora & Ors v Care International Zimbabwe SC 24-14).

Ground 3 of appeal is therefore dismissed.

Ground 4 (a) – Probation

In this ground of appeal I am called upon to interpret section 12 (5) of the Labour Act. It provides as follows:

“A contract of employment may provide in writing for a single, non-renewable probationary period of not more that—

One day in the case of casual work or seasonal work,

Three months in any other case, …”

It is the appellant’s contention that probation is once off and non-renewable and it cannot be extended.

The respondent argues that the section shows that a contract of employment may not provide for an extension of a probation period and that the section does not say that a contract of employment shall not provide for an extension.

I believe section 12 (5) of the Labour Act is one where the language used is plain and unambiguous and should be given its ordinary meaning.

Clearly the use of the word “may” makes the inclusion in writing of a probationary period optional. However once such a probationary period is included it has to be single, non-renewable and for the periods specified. Any other interpretation would render the provisions relating to “a single, non-renewable probationary period” inconsistent with the clear intention of the legislature.

I have however already found that there was no real extension of the probation period. My findings on ground 3 of appeal are binding therefore.

Ground 4 (b) - Unilateral variation of the Contract of employment

The appellant alleges there was a unilateral variation of the contract of employment from the contract without limit of time, to the monthly fixed term contracts whose terms were revised.

I wish to reiterate that the appellant is bound by the terms of the monthly fixed term contracts which he freely and voluntarily signed. This position is set out in Magodora & Ors v Care International Zimbabwe supra as follows:

“They are surely bound by the express terms that they have agreed to and cannot complain, notwithstanding those terms …

In principle, 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.”

There is therefore no merit in this ground of appeal.

Ground 5  -  Casualization of labour

In this ground the appellant alleges that by being made to sign monthly contracts for a year, his labour was casualized and this is unlawful.

The respondent argues that the signing of monthly fixed term contracts does not amount to casualization of labour.

The argument of the appellant has been rejected by the Supreme Court in the Magodora & Ors v Care International Zimbabwe case.

I find therefore that the continual renewal of fixed term contracts over a period of time does not amount to casualization of labour as envisaged by section 12 (3) of the Labour Act.

There is no merit in this ground of appeal.

Consequently, the appeal having no merit in its entirety be and is hereby dismissed.

Nyikadzino, Simango & Associates, respondent’s legal practitioners