Rural Electrification Agency V Masimba Ndlovu

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/505/2014
HARARE, 24 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/505/2014

HARARE, 24 JULY 2014 &			            CASE NO LC/H/332/2014

1 AUGUST 2014

RURAL ELECTRIFICATION AGENCY				        APPELLANT

MASIMBA NDLOVU						      RESPONDENT

Before the Honourable G Musariri Judge

For Appellant	M Gapara (Executive)

For Respondent	Ms C Mapanda (Unionist)

MUSARIRI, G:

The appellant appealed against an arbitration award in favour of the respondent. The award found that the appellant unfairly dismissed the respondent from its employ and ordered his re-instatement. The appellant’s argument was that the arbitrator erred and misdirected herself in finding that the respondent had a legitimate expectation of the renewal of his contract with the appellant. The respondent opposed the appeal.

The concept of legitimate expectation was introduced into our labour jurisprudence by section 12B (3) of the Labour Act [Cap 28:01] (hereafter called “the Act”). The sub-section provides that:

“(3)	An employee is deemed to have been unfairly dismissed-

…

If, on termination of an employment contract of fixed duration, the employee-

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

The relevant contract in casu ran for six months from the 15th April 2005 to the 15th October 2005. It was based at Bindura. On its expiry, the appellant asked the respondent to stay on for a handover of his duties to a new employee. This effectively meant that the appellant was replaced by a new employee. Indeed the appellant admitted as much. However the appellant argued that notwithstanding his replacement, the respondent did not have a legitimate expectation of the renewal of the contract. It based its argument on clause 1 of the contract. The clause read thus,

“1.	The employer shall employ you as a contract employee in the capacity of ….. at Bindura for period of six months commencing on the 15th  April 2005 and terminating on the 15th  October 2005.

This contract is not renewable upon expiry.” (The underlining is

for emphasis.)

The contract explicitly ruled out renewal. Most employees in the respondent’s position would expect renewal, but where a contract explicitly rules out renewal, the expectation becomes “illegitimate”. I was referred to various fixed term contracts the parties made prior to the one in issue. Most, if not all of them, did not have the wording which ruled out renewal. In light of the explicit wording of the contract, the respondent could not entertain a legitimate expectation of renewal

Alternatively, in the unlikely event that it is found that there was legitimate expectation, the situation was changed by a new contract. On the 7th November 2005 the parties signed a new contract. The contract ran up to the 30th April 2006 at Harare. The new contract effectively meant that the parties novated their rights and obligations under the previous contract. The new contract spelt out their final rights and obligations. As such the respondent could not re-visit the previous contract to found some claims against the appellant. In any event the new contract does not recite any such claims.

From the foregoing it is evident that I consider that the arbitrator misdirected herself. The respondent did not have a legitimate expectation of the renewal of the employment contract with the appellant.

Wherefore it is ordered that:

The appeal is hereby allowed; and

The arbitration award by the Honourable Monica Vimbayi Hanga

dated 27th March 2014 is set aside.

G MUSARIRI

J-U-D-G-E