Tongai Dhowa & Elliot Mutayaunga v SERVCOR (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/165/2016
HARARE, 15 FEBRUARY 2016 &
18 MARCH 2016
CASE NO LC/H/836/2012
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/165/2016

HARARE, 15 FEBRUARY 2016 &			                 CASE NO LC/H/836/2012

18 MARCH 2016

TONGAI DHOWA							    1st APPELLANT

ELLIOT MUTAYAUNGA						   2ND APPELLANT

SERVCOR (PVT) LTD						   RESPONDENT

Before the Honourable G Musariri  :  Judge

For the Appellants	Ms L Makuzva  (Unionist)

For the Respondent     Mr K Dera  (Manager)

MUSARIRI J:

The arbitrator W Musiiwa issued an arbitration award on 24 September 2012. In terms thereof he dismissed the appellants’ claim of unfair dismissal from employment by the respondent. The appellants then appealed to this Court against the award. The respondent opposed the appeal.

The Grounds of Appeal averred are as follows:

“The 1st and 2nd applicants were employed on silent contracts as indicated on the last form they completed dated 1 July. They had been on fixed term contracts previously but on this one their contractual agreement was very silent. The CBA of the Catering Industry S I 167/91 in section 17 (1) i – v states that the agreement detailed to be filled on a prescribed form stating the nature of the contract.

The respondent may be had intended to take the appellants on a fixed term but later changed and considered them for a silent contract. Such a contract then calls that they be deemed to be on a contract without limit of time. They then caused a problem when they terminated the same under such conditions because other people have been engaged to fill in their posts.

The claim is based on the non-compliance by the respondents to adhere to the requirements of S I 167/91.”

The respondent replied that:

“I.	This is a frivolous appeal that does not raise any point of law.

II.	The reasoning of the arbitrator cannot be faulted. The appellants’ contract of employment was terminated by effluxion of time and there is no basis for claiming that they were permanent employees.”

The contracts of employment were filed of record. On the prescribed form the date employment commenced is given as 1 July 2011. The end date is not given. However an addendum was attached giving the end date as 30 September 2011. The addendum is signed by both employer and employee. The appellants argued that the addendum is invalid because it was not on the prescribed form. Yes the addendum is not the prescribed thing, but the Collective Bargaining Agreement (“CBA”) they relied on does not nullify the addendum. Parties are at liberty to expand the details in the prescribed form through an addendum. The addendum was duly signed and dated by the parties. It was their agreement. It is disingenuous of the appellants to then turn around and disown the addendum. The contracts terminated by effluxion time that is on the end date, the 30th September 2011. Accordingly the arbitrator was correct in rejecting the claim of unfair dismissal.

Wherefore it is ordered that:

The appeal be and is hereby dismissed; and

The arbitration award issued by arbitrator W Musiiwa dated 24 September 2012 is upheld.

G Musariri

J U D G E