Silas Mudimu v Zesa Enterprises (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/77/2016
HARARE, 4 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/77/2016

HARARE, 4 FEBRUARY 2016			          	       CASE NO. LC/H/583/15

AND 19 FEBRUARY 2016

In the matter between:-

SILAS MUDIMU							Appellant

And

ZESA ENTERPRISES (PVT) LTD				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr P. Mahembe (Trade Unionist)

For Respondent		Mr M Baera (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award dismissing appellant’s claim.  Appellant was employed by the respondent as a quantity surveyor on fixed term contracts that were continuously renewed from 1 May 2009 to 30 June 2011.  The respondent advertised the post for a permanent position.  Appellant applied.  Interviews were held and appellant was not successful.  One Charles Karichi was engaged on a permanent basis to the position appellant used to occupy.  Appellant’s contract that was due to expire on 30 June 2011 was terminated on 1 June 2011 but respondent paid the full pay and benefits up to the 30 June 2011, the expiry date.

Appellant was aggrieved and referred the issue of unfair termination of contract to the Ministry of Labour.  The issue was subsequently referred to arbitration.  The arbitrator dismissed the claim.  Aggrieved, appellant noted an appeal in this court on the following grounds:

The honourable arbitrator erred, with respect, by making a conclusion that the appellant was not unfairly dismissed on the basis that the contract had expired by effluxion of time.  Put differently the appellant contends that the legal position applying to the facts was misinterpreted.

The honourable arbitrator erred, with respect, and misdirected himself in determining that the appellant had no legitimate expectation of being engaged permanently by the respondent, despite the respondent being engaged in a series of fixed term contracts from May 2009 to June 2011.

The honourable arbitrator erred in determining that no other person had been engaged in the position of the appellant.

The honourable arbitrator by determining that the appellant was not underpaid (sic).

In response respondent reiterated that there was no misdirection in the determination of the arbitrator.  It further stated that it is a settled position in law that a contract on a fixed term basis expires at the effluxion of time.  The respondent averred that appellant was never promised re-engagement as a permanent employee and therefore had no legitimate expectation in the circumstances.  Respondent also submitted that the person who was engaged on a permanent basis had different conditions of service and title and therefore cannot be said to have been engaged in the position appellant had occupied.  Respondent pointed out that appellant was not entitled to the allowances and benefits forming the basis of the claim for underpayment.

Appellant confirmed to the court that his contract was terminated prematurely on 1 June 2011 but was paid up to 30 June 2011.  According to him he is asking the court for another contract period.  According to his prayer in the notice of appeal, he is seeking reinstatement without loss of salary and benefits from 01 June 2011 or  an alternative of damages in lieu of reinstatement. His request for reinstatement  from 1 June 2011 has no basis as he was paid up to 30 June 2011, a fact that he confirmed to this court.  He would have been entitled to reinstatement for the unexpired period of the fixed term contract, if he had not been compensated for it.  To order reinstatement beyond the termination period of a fixed term contract would be tantamount to the court creating a contract between the parties.  Christe in the Law of Contract in South Africa, 5th edition, at page 366 states:

“The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned.  It is unthinkable that the courts should not only tell the parties what they ought to have done but then make them do it by enforcing the Court’s idea of what the contract ought to have been.”

The arbitrator cannot be faulted for not ordering reinstatement.  The arbitrator can also not be faulted for dismissing the claim for underpayment.  In the award it is noted that appellant provided a payslip which does not show the benefits he was claiming.  Respondent submitted before the arbitrator that appellant’s salary or any benefits were provided for in the contract of employment.  A copy of the contract was availed.  Respondent had further submitted that appellant, at all material times, was paid his salary and benefits applicable to him or as provided in the contract of employment.  Without any proof to the contrary, the arbitrator’s finding cannot be impugned.

The question that remains is whether or not the arbitrator can be faulted for finding that appellant had no legitimate expectation of being engaged on a permanent basis.  I am of the view that the arbitrator was correct.  It was submitted for appellant that the basis of the legitimate expectation were the numerous verbal assurances from the Divisional Manager who gave him hope that the position would be reserved for him.  In Matake and Others v Minister of Local Government and Housing and Another 2007 (2) ZLR 96 Ndou J stated:

“The court does not protect every expectation but only those which are ‘legitimate’.  The requirements for legitimacy of the expectation include the following:

The representation underlying the expectation must be clear, unambiguous and devoid of relevant qualification;

The expectation must be reasonable;

The representation must have been induced by the decision maker; and

The representation must be one which it was competent and lawful for the decision-maker to make without which reliance cannot be legitimate.”

The numerous verbal assurances relied on by appellant do not pass the test.  The honourable arbitrator commented that the said promises were not coming through this Supervisor, who is his line-in-authority.  As confirmation of the arbitrator’s observation appellant produced an internal correspondence from a Human Resources Officer to the Divisional Manager (Projects) who was pleading appellant’s cause.  It was not the Divisional Manager, but an officer and that officer cannot be termed a decision-maker.

In any event appellant participated in interviews.  It would have been a different scenario if Mr Karichi was simply appointed without interviews.  In Magodora and Others v Care International Zimbabwe SC 24/14 the provision of section 12B (3) (b) were interpreted to mean that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead.  The process of interview cannot be termed supplanting.  I am therefore not convinced that there is any merit in this appeal and it cannot succeed.

Accordingly the appeal be and is hereby dismissed.

Baera & Company, respondent’s legal practitioners