R Dhlamo and 5 Others v Yellowcob Enterprises t/a Braeside Spar

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/780/2016
HARARE, 1 NOVEMBER 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/780/2016

HARARE, 1 NOVEMBER 2016			          	       CASE NO. LC/H/1142/14

AND 9 DECEMBER 2016

In the matter between:-

R DHLOMO AND 5 OTHERS					Appellants

And

YELLOWCOB ENTERPRISES t/a	 			Respondent

BRAESIDE SPAR

Before The Honourable F.C. Maxwell, Judge

(IN CHAMBERS)

MAXWELL, J:

The record of this matter was placed before me in Chambers to be dealt with in accordance with Section 89 (2) (a (i) of the Labour Act [Chapter 28:01].

Appellants were employed as till operators and general hands on six months fixed term contracts since April 2012.  On 11 December 2013 Respondent gave notices of non-renewal of the contracts of employment to the Appellants.  The Appellants were aggrieved and approached the NEC for Commercial Sectors alleging unfair dismissal.  Appellants claimed to have legitimate expectation of renewal of their contracts.  The matter was heard by an arbitrator who dismissed the claim.  The appellants appealed to this Court on the following grounds,

The arbitrator erred in failing to appreciate the demonstration by the claimants that their claim met the two aspects of qualifying it to unfair dismissal i.e legitimate expectation and the re-engagement of other people in the stead of the claimants.

The Arbitrator erred in considering a different case in question, the courts differentiate the legitimate expectations of Non-Governmental Organisations from those in private Sectors because of the difference in the sources of their finances.

The Arbitrator erred in putting the burden of proof on the claimants but taking the submissions of the Respondent though without any evidence.

In response Respondent stated that the decision of the arbitrator is unassailable at law.  Further that the appellants failed to meet the two aspects of legitimate expectation in terms of the Labour Act [Chapter 28:01]. Respondent disputed that Courts differentiate between non-governmental organisations and private sectors as they are governed by the same Act.  Respondent stated that in proving the claim of legitimate expectation, he who alleges must prove.

Regarding the first ground of appeal Appellants seem to have placed reliance on a statement by George Makings in his commentary published in 2003 to the effect that the more occasions one enters into the continuation of contractual employment the more likely it is that that person will have a legitimate expectation of continued employment.  This obviously was corrected in such cases as Kundai Magodora & Others v Care International Zimbabwe SC 24/14 where it was stated that the continual renewal of fixed term contracts does not necessarily give rise to legitimate expectation.  In the absence of an express promise of renewal Appellants have no basis to claim legitimate expectation, especially in the circumstances of this case where their contracts of employment had a clause which ruled out the possibility of legitimate expectation.  As stated by Respondent, the Arbitrator’s decision on this point is unassailable.

Ground of Appeal number two fails to meet the requirements of Section 98 (10) of the Labour Act [Chapter 28:01]. No question of law arises therefrom. It is trite that any appeal from an arbitral award to this court must be on a question of law.  The question of law has been defined in a number of cases.  In Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 it was stated as,

“(i)	a question which the law itself has authoritatively answered to the exclusion of the right of the Court to answer the question as it think fit in accordance with what is considered to be the truth and justice of the matter.

(ii)	A question as to what the law is.  An appeal on a question of law means one in which the question for argument and determination is what the true rule of law is in a certain matter.

(iii)	A question which is within the province of the judge instead of jury.”

It is also trite that a misdirection on facts amounts to a question of law if it is so unreasonable that no sensible person applying his mind to the facts would have reached such a conclusion.  See Chinyange v Jaggers Wholesalers SC 24/04.  I am not persuaded that the second ground of appeal falls in any of the categories qualifying as a question of law. For that reason it is improperly before me and I strike it off the record.

The third ground of appeal criticises the Arbitrator for putting the burden of proof on the Appellants.  The arbitrator stated that the then claimants claimed that some named persons were engaged to take up their positions but no evidence was led to prove that the new employees were not employed in a different capacity.  Appellant’s heads of argument state that Respondent was supposed to bring the information of newly employed employees as he is the custodian of those records and Appellants cannot go beyond identifying the referred employees.  That argument has no legal basis.  It is trite that he who alleges must prove.  See Lasagne Investments (Pvt) Ltd v Highdon Investments H-H-188-10.  The arbitrator’s decision can therefore not be impugned.  In the final analysis I find no merit in the appeal. Consequently the following order is appropriate.

The appeal be and is hereby dismissed for lack of merit.