Tafadzwa Mutyoro v Zimwin Mining and B. Chipokosha N.O.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/397/25
HELD AT HARARE
CASE NO. LC/H/670/25
In the matter between:
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/397/25

HELD AT HARARE	CASE NO.	LC/H/670/25

In the matter between:

TAFADZWA MUTYORO	APPELLANT

And

ZIMWIN MINING	1st RESPONDENT

And

B. CHIPOKOSHA N. O	2nd RESPONDENT

3 October 2025; CAV

Date of judgment: 20 October 2025 Before Honourable Makwande J

F. Zimwayiwa, for the appellant

G. Chihuta, for the 1st respondent 2nd respondent, in absentia

MAKWANDE J:

This is an appeal made in terms of section 98(10) of the Labour Act [Chapter 28:01] (“the Labour Act”) against the determination of an arbitrator in which she held that the appellant was employed under a probationary contract, hence the unilateral termination of her contract by the first respondent was lawful.

BACKGROUND

The appellant, a former employee of the respondent, was engaged on 1 November 2023 under a verbal contract at a salary of USD 500 per month. She was dismissed on 22 January 2024, after three months of service, without written notice, hearing or stated reasons.

Contending unfair dismissal, non-payment of salary and entitlement to leave days, the appellant pursued conciliation, which yielded a certificate of no settlement, and thereafter proceeded to compulsory arbitration. In her claim, she alleged that she was employed as a Human Resources Manager and sought reinstatement with full benefits, alternatively damages in lieu of reinstatement and accrued leave pay.

The first respondent denied the claim, asserting the appellant was employed as a translator on probation, not as Human Resources Manager. Her contract was lawfully terminated at the end of her three months’ probation for lack of Chinese language proficiency, which was a core requirement.

The arbitrator found no evidence substantiating the appellant’s claim of managerial appointment, with WhatsApp exchanges showing only limited recruitment assistance. The first respondent’s evidence of probationary engagement as translator was accepted. The arbitrator held the termination was lawful under s 12 of the Labour Act, being effected within probation on performance grounds.

As a result of its finding, the arbitrator awarded the appellant cash in lieu of 7.5 days’ leave, amounting to USD 124.50, payable within 14 days. The amount was calculated by dividing the monthly salary of USD 500 by 30 to obtain the daily rate, and multiplying that rate by 7.5 days.

The appellant, dissatisfied by this finding, filed an Appeal in this court on the grounds that:

The arbitrator grossly erred and misdirected herself at law by awarding that the termination of the appellant was fair and procedural while in actual fact there was no probation period given to the Appellant.

The arbitrator grossly erred and misdirected herself at law by awarding that the appellant was on probation period (sic) without considering substantive evidence that the appellant was on probation.

The arbitrator grossly erred and misdirected herself at law in not considering that there should have been documents reduced to writing according to section 12 of the Labour Act [Chapter 28:01].

Consequently, the appellant prayed for the following relief:

“RELIEF SOUGHT

Wherefore, the appellant prays that the Appeal succeeds with costs of this application.

The arbitration award handed down by the arbitrator dated 20 June 2025 be and is hereby set aside.

The respondent is hereby ordered to reinstate the appellant without loss of salaries and terminal benefits, if reinstatement is no longer tenable the respondent to (sic) pay back pay from the date of unlawful termination to the month in which the order is handed down by this Honourable Court, compensation for loss of employment and terminal benefits.”

PRELIMINARY POINT

At the hearing, the first respondent raised as a point in limine that the third ground of appeal is defective for want of particularity, as it broadly invokes s 12 of the Labour Act without identifying the specific issue or particular part of determination being impugned.

The third ground of appeal is framed in overly broad terms, lacking specificity as to the documents in issue and what part of the determination it refers to. The appellant appears to rely on s 12 (2) of the Labour Act, as cited in the heads of argument. However, s 12 comprises multiple subsections, and the precise provision invoked is unclear. While s 12 generally requires contracts of employment to be reduced to writing, the ground as structured indeed lacks particularity. (See Sonyongo v Minister of Law-and-Order1996 (4) SA 384; Chinganga v Shava & Ors S–12–22). Accordingly, for the foregoing reasons the third ground stands to be dismissed. The appeal will, therefore, be determined on the basis of the remaining two grounds of appeal.

ISSUE FOR DETERMINATION

The first and second grounds of appeal address the same issue, in particular, whether the Appellant was employed on a probationary basis. Consequently, I identify the issue for determination to be: Whether the second respondent grossly erred and misdirected herself in law by holding that the Appellant was on probation.

SUBMISSION BY PARTIES

The parties agreed that the contract between them was verbal and that its termination was also verbal. They disagreed on the reasons for the termination.

The appellant maintained that her contract was without limit of time ab initio and had no probation period. If it had, the first respondent had to comply with s 12(2)(c) of the Labour Act obliging it to inform her in writing of the terms of probation if any.

The first respondent, on the other hand, maintained that the appellant was employed as a translator and not a Human Resources Manager. Her false claim of the post she held, which she has since abandoned, is a clear indication of her untruthfulness. They argue that it supports their assertion that she is also not being truthful by alleging that she was not on probation.

The first respondent submits that they could not have employed the appellant on a permanent basis without a record of her being good at the translation of local languages into Chinese. For it, this supports that the appellant was employed on probation.

THE LAW

Part IV of the Labour Act speaks to the general conditions of employment. Whilst the Act recognises that a contract of employment can be in writing or otherwise, it clearly stipulates what must be done by an employer upon engagement of an employee. Section 12(2) of the Labour Act provides as follows:

An employer shall, upon engagement of an employee, inform the employee in writing of the following particulars –

…(c) the terms of probation, if any;

Section 12(5) of the same Act further provides that:

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

one day in the case of casual work or seasonal work; or

three months in any other case;

A reading of the above provisions is clear that probation is not a sine qua non for every contract of employment. It is a separate agreement from the contract of employment whose terms must be communicated to the employee by the employer in writing.

The St Giles Medical Rehabilitation Centre v Patsanza 2018 (2) ZLR 533 (S)

decision relied upon by the first respondent, explained probation as follows:

“It is apparent from the above that firstly, the employee must successfully complete the period of probation before he can be permanently employed. Secondly, that the probation period is a separate and distinct contract.” (emphasis added)

The above case, rightly quoted by the first respondent, states the expectations from a probationary employee who is expected to successfully complete the probation period. The case does not, however, prescribe that probation is a requirement in every employment contract, as the first respondent sought to argue. It makes it clear that it is a separate and distinct contract. The option is available to the employer to engage the employee under probation or not.

The court having gone through the findings by the arbitrator could not find the evidence or let alone the reasoning behind the finding that the appellant was on probation. The arbitrator failed to appreciate that probation is a separate and distinct contract which must be proved. Her comments as regards probation were as follows:

“The Respondent terminated the Claimant after probation citing performance grounds (lacks fluency). This is allowed under Section 12 of the Labour Act, provided it occurs within the probation period and the standard was communicated which it was”.

At no point did the arbitrator discuss why she held that appellant was on probation. This failure was a clear misdirection at law.

In casu, the first respondent, relying on probation to justify dismissal, bore the onus of proof. Section 125 of the Labour Act obliges the employer to keep employment records, while s 12 of the Labour Act cited above requires that employees be informed of the particulars of the contract. No such evidence was produced.

Accordingly, there was no proof that the appellant was on probation. The first respondent failed to keep records which should be adduced as evidence thereof. I

believe the sentiments expressed in Saviour Kasukuwere v Lovedale Mangwana & Anor S–78–23, by GUVAVA JA, which cites Musanhi v Mt Darwin Rushinga Co- operative Union 1997 (1) ZLR 120 with approval apply in these circumstances. In this case, GUBBAY CJ approved the dicta from Eskom v First National Bank of Southern Africa Ltd 1995 (2) SA 386 (A), wherein the court held that:

“As a matter of fairness and sound judicial policy, it seems reasonable that, where one party has the means of establishing a particular fact and his opponent not, the onus should rather be on the former than on the latter.”

This court having held that the contract had no probation period, the only way by which the first respondent could terminate the employment contract would be in terms of s 12(4) as read with s 12(4a) & (4b) of the Labour Act, which provide as follows:

“(4) Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be—

three months in the case of a contract without limit of time or a contract for a period of two years or more;

(4a) A contract of employment may be terminated only, on the part of an employee, by his or her resignation or retirement, and in the following cases on the part of an employer –

by mutual agreement in writing;

for the breach of an express or implied term of the contract, upon breach being verified after due inquiry under an applicable employment code or in any other manner agreed in advance by the employer and employee concerned. No employer shall terminate a contract of employment on notice unless

(4b) Where an employee is given notice of termination of contract in terms of subsection (4a) and such employee is employed under the terms of a contract without

limit of limitation of time, the provisions of section 12C shall apply with regard to compensation for loss of employment.”

Based on the above, this court is of the view that the second respondent erred and misdirected itself by considering that the appellant was on probation despite lack of evidence to that effect.

DISPOSITION

Accordingly, it is ordered that:

The respondent’s point in limine is upheld. The third ground of appeal is struck off as it is not a valid ground of appeal.

The appeal is hereby allowed. The second respondent’s arbitral award be and is hereby set aside and substituted with the following:

“ i. The respondent is hereby ordered to reinstate the claimant without loss of salaries and terminal benefits.

ii. Alternatively, if reinstatement is no longer tenable the respondent shall pay the claimant damages in lieu of reinstatement in the sum agreed by the parties or as ordered by this Tribunal.”

The first respondent shall pay appellants costs of suit.

National Domestic and Allied Workers Union, the appellant’s representatives.

Mawonera Attorneys, the respondent’s legal practitioners.