Savanna Pharmaceuticals v Judith Marera & Tineyi Chimusoro

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/228/2016
HARARE, 14 MARCH 2016
CASE NO. LC/H/78/15
---------




IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/228/2016

HARARE, 14 MARCH 2016 			     	 CASE NO. LC/H/78/15

AND 22 APRIL 2016

In the matter between:-

SAVANNA PHARMACEUTICALS			Appellant

And

JUDITH MARERA						1st Respondent

And

TINEYI CHIMUSORO					2nd Respondent

Before Honourable L.M. Murasi, Judge

For Appellant		Mr B. Mahuni (Legal Practitioner)

1st Respondent		In Person

2nd Respondent		Not In Attendance

MURASI J:

This is an appeal from Honourable Manase’s decision.  The facts show that the respondents were employed by the appellant.  Respondents were offered employment which was conditional on their completing their respective probationary periods.  After the probationary periods had expired it is alleged that appellant wrote to the respondents informing them that due to unsatisfactory performance during the probation period the appellant was renewing the probation period.  The matter was referred to conciliation and finally to arbitration.  The arbitrator found in favour of the respondents.  Appellant has therefore appealed to this Court.

Appellant’s grounds of appeal are as follows:

The arbitrator erred in finding that a probation period could not be extended by agreement between employer and employee;

The arbitrator erred in finding that a dismissal with 24 hours’ notice amounted to an unfair dismissal, when (the) said dismissal is in terms of the agreement;

The arbitrator erred in finding that at the expiry of the probation period a fixed term of contract automatically came into existence.

At the commencement of the proceedings 1st respondent produced an affidavit deposed to by 2nd respondent.  The affidavit was to the effect that 2nd respondent was not able to attend the proceedings and mandated 1st respondent to represent her. Mr Mahuni pointed out that 1st respondent could not represent 2nd respondent as the provisions of the Labour Act [Chapter 28:01] were clear as to who was able to represent parties in proceedings.  He therefore applied that a default judgment be issued in respect of 2nd respondent. I will revert to this issue later in the judgment.

On the merits of the case, Mr Mahuni stated that he largely abided by the heads of argument filed of record.  It was stated that appellant had terminated the respondents’ contracts of employment on 28 September 2012 and 30 September 2012 respectively on twenty four hours’ notice as provided for in the probation contracts.  It was submitted that the reason for such termination was the respondents’ unsuitability for their respective positions and a failure to improve their performances even when given an opportunity to do so.  In respect of 1st respondent, it was argued that she was advised of the extensions of the probationary period to 30 September 2012 after consultations and discussions.  The letter of communication to 1st respondent was dated 2 July 2012 and 1st respondent had acknowledged receipt of that letter.  It was further argued that the extension was with the consent of 1st respondent and was therefore not unilateral.  It was further submitted that appellant had chosen not to dismiss the 1st respondent at the expiry of the probation period but to give her another chance to improve herself.

As for the 2nd respondent, Mr Mahuni stated in his heads of argument that her probation period was from 1 March 2012 to 30 June 2012.  It was submitted that 2nd respondent failed to meet her expected performance standards and her probationary period was extended to 30 September 2012.  A letter was also written to 2nd respondent on 2 July 2012 and she had acknowledged receipt.  It was further stated that the extension was consensual.

Mr Mahuni stated that precedent showed that it was lawful for an employer to extend an employee’s probation contract provided that this was done in consultation and with the consent of the employee.  He also argued that the use of the ward “may” in the relevant statute showed that the requirement was not a peremptory one.  Mr Mahuni cited the case Kwangwari vs Commercial Bank of Zimbabwe HH 79/2003.  It was said that the intention of the legislature was to give the employer and the employee the autonomy to agree on better terms.  It was further submitted that the arbitrator had erred in finding that the dismissal of the respondents on twenty-four hours’ notice amounted to an unfair dismissal when the same notice period was provided for in terms of the agreement.  Mr Mahuni stated that appellant had acted within the confines of the law in terminating the respondents’ contracts on notice.

The Court will begin by addressing the point raised by Mr Mahuni that 1st respondent cannot represent the 2nd respondent.  He cited section 92 of the Labour Act.  It is clear that the statute provides for persons who may represent litigants in the Labour Court.  The section lists the persons as legal practitioners, trade unions or officials of trade unions.  It is correct that 1st respondent is not one of those listed above.  The question that arises is, was 2nd respondent requesting that 1st respondent represent her in the manner contemplated by section 92 of the Act?  Respondents took their matter jointly before the Labour Officer.  They jointly appeared before the arbitrator.  The appellant appealed against the arbitrator’s decision and filed the appeal with the Labour Court where the respondents appear jointly.  The respondents’ case has been deliberated at the same time and the same issues have arisen and addressed at the same time.  This means that a decision affecting one would of necessity affect the other.  I am of the view that the representation envisaged in section 92 does not affect this case.  Blackie J had occasion to deal with a similar matter in Mashave vs ZUPCO & Another 1998 (1) ZLR 567 (H) at 570 E-F where he had this to say:

“I prefer the more general approach set out in Gudza’s case.  Proof of authorisation to start proceedings on behalf of another in this court is not normally required to be in affidavit form.  I can see no objection  in principle to the filing of a joint document of authorisation and every reason in practice why, where there are a large number of applicants, such a document, if it can be obtained should be filed.  I can also see no reason in principle why some document, other than an affidavit, if properly presented could not be used to prove the authority to represent in terms of rule .

This position was confirmed by McNally JA (as he then was) in Mashave vs ZUPCO & Another 2000 (1) ZLR 478 (S).  I therefore hold the view that the 1st respondent was not encumbered in representing 2nd respondent in the circumstances.  Further, in the interests of justice, the Court would be dwelling on technical issues rather than deal with the matter on the merits.  The Court further observes that heads of argument purportedly authored by both respondents but signed by one of them were filed with this Court on 15 July 2015.  Appellant did not object to that document.  The Court is therefore not inclined to allow the default judgment applied for by appellant’s Counsel in respect of the 2nd respondent.

I now turn to the submission of 1st respondent.  1st respondent submitted that when the contracts were allegedly terminated by appellant, they were no longer on probation but on a fixed term contract of six months.  She said that in her particular case her probation period ended on 12 June 2012 and she did not receive any comments about her performance during the performance period.  As far as the document dated 2 July 2012 was concerned, she stated that its contents were not factually correct.  1st respondent stated that they had signed the document as an acknowledgement of receipt and not that they agreed with what was contained therein.  1st respondent stated that the meeting that had been called by appellant was to apprise management that a new Chief Operating Officer had taken over and wanted to start on a new leaf and that all heads of departments were to report to him.  1st respondent argued that the Labour Act does not provide for a probationary period in excess of three months and as that period had expired, they were now on six months’ fixed contract.  The Court inquired from 1st respondent as to whether there had been any discussion about their performance during the probation period.  1st respondent stated that there was no such discussion as appellant did not have a performance appraisal system at the workplace.

Precedent shows that an appellate court can only interfer with the decision of a lower court or tribunal where there is evidence of a gross misdirection to such an extent that another reasonable court or tribunal would not have arrived at such a decision on the same facts.  (See Chioza vs Siziba S 4/15).  In casu, the arbitrator found that the appellant had unfairly dismissed the respondents. Appellant argues that it had extended the probationary periods for the respondents.  What is clear from the evidence is that the respondents completed their probation periods without receiving any communication from the appellant which related to their not having successfully completed that probation period.  The appellant duly initiated discussions with the respondents at the end of the month of June 2012.  Mr Mahuni submitted that the communication was late in coming but that did not mean that there was an automatic employment for six months.  This submission does not assist the appellant at all.  The vital question is that why had the appellant not communicated to the respondents about their poor performance during the probationary period?  Mr Mahuni sought to rely on the Kwangwari case.  That case is clearly distinguishable in that the employee in that case had been informed of his short comings prior to end of the probationary period.  In the Kwangwari case the following observation was made:

“Probationary clauses provide for a trial period during which reciprocal periods of notice required for termination are shorter and which purportedly give both parties the right either to confirm or not to confirm the contract at the conclusion of the probationary period.”

In the same judgment it was stated thus;

“The employer, however, must give the employee a proper opportunity to prove himself and give a warning if the required standards are not being met.  A probationary employee is still an employee and is therefore entitled to have appropriate guidance and advice.”

Appellant does not state that it gave any warnings about respondents’ performance during the probationary period.  Was the arbitrator in error in stating that the dismissals were unfair?  I think not.  This is because the arbitrator was of the view that the respondents had embarked on the six months’ contract when appellant purportedly dismissed them.  The appellant hasd not terminated the probationary contracts at their expiry.  The logical conclusion was that the respondents had embarked on the six months’ contract.  I am of the view that appellant was seeking to excuse itself from the contract it had signed with the respondents, Patel JA had this to say in Kundai Magodora & Others vs Care International Zimbabwe S 24/14 at page 7 of the cyclostyled judgment.

“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.”

The contracts signed between the parties clearly show that after the probationary period, the respondents were to embark on six months’ contracts.  Appellant did not communicate with the respondents before the probationary contracts expired about its intentions.  To this end the findings of the arbitrator cannot be said to be wrong in the circumstances.

Appellant argues that the arbitrator erred in finding that the notice period required was in excess of 24 hours.  Clearly the appellant and the arbitrator are referring to different contracts.  Appellant is referring to the “second probationary period” whilst the arbitrator refers to:

“terminal damages for the period 30th September to 12 December 2012”.

This clearly shows that the arbitrator was referring to the unexpired period of the six months’ contract. I do not find that the arbitrator erred in this respect.  Having found that the appellant had unlawfully terminated the respondents’ contracts of employment, this means that the respondents’ six months’ contracts were extant.  I therefore find that all appellant’s grounds of appeal are without merit and ought to be dismissed.

In the result the court is of the view that the appeal is without merit and ought to be accordingly dismissed.  The court makes the following order:

The appeal, being without merit, is accordingly dismissed.

The arbitral award of Honourable Manase be and is hereby upheld.

Each party to bear its own costs.

Scanlen & Holderness, appellant’s legal practitioners