W. Mazhangara and 7 Others v Easipark

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/122/2013
HELD AT HARARE ON 20TH NOVEMBER, 2012
CASE NO. LC/H/68/2012
AND 17th JANUARY, 2014
JUDGMENT NO. LC/H/122/2013
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IN THE LABOUR COURT OF ZIMBABWE	         	      JUDGMENT NO. LC/H/122/2013

HELD AT HARARE ON 20TH NOVEMBER, 2012		      CASE NO. LC/H/68/2012

AND 17th JANUARY, 2014

In the matter between

W. MAZHANGARA AND 7 OTHERS		–		Appellant

And

EASIPARK						–		Respondent

Before The Honourable B.T. Chivizhe, President

For Appellant 	-	Mr A Muchadehama (Legal Practitioner)

For Respondent  	-	Mr. P. Dube (General Manager)

CHIVIZHE, B.T.

The appeal is noted against the arbitral award dated 27/01/2012 directing Respondent to pay Appellant and 7 others one month salary as cash in lieu of notice.

The background facts to the matter are as follows;

The Appellant were employed by the Respondent on contracts from 18th of October, 2010.  The terms and conditions of the contracts is the subject of dispute between the parties.  The Appellants submit that they were on contracts without fixed duration and therefore the contracts could not be terminated on notice.  In the alternative Appellants submit that even if they were on fixed term contracts their contracts ought to have been lawfully terminated.  The Respondent contends that the Appellants were engaged on fixed term contracts of one year.  By virtue of the provisions in S12 (4) (b) of the Labour Act [Cap 28:01] they were entitled to be given two months notice before termination of their contracts.  I t is common cause in casu Appellants were only given five days notice before termination.

The Appellants lodged a complaint of unlawful termination of contract.  The matter was referred initially for conciliation and when that failed it was then referred for compulsory arbitration.  The Arbitrator in his award came to a conclusion that the Appellants were employed on a fixed term contract of one year; that the contracts which specified a 24 hour notice period on either side were contrary to the provisions under Labour Act; that the Appellants were entitled to two months notice but since one month had been paid as cash in lieu of leave the Appellants were owed each a month’s salary as cash in lieu of notice by the Respondent; he dismissed the claim that because the contracts were extended by a day the Appellants were now on permanent or open-ended contract; he also dismissed the claim for legitimate expectation of renewal of contracts; he also dismissed Appellants claims of having signed contracts without reading or understanding the terms citing the Latin maxim ‘caveat subscripto’.  The Arbitrator then handed down an award in the following terms;

“Easipark Pvt Ltd is hereby ordered to pay each of the 7 Complainants (W. Mazhangara, F. Chakaodza, M. Mugumbate, V. Matavire, J. Gatsi, D. Tavarwisa and N. Dube) one month salary as cash in lieu of notice.  The 8th Complainant (Patricia Madzamba) should appeal to the Local Joint Committee through the provisions of the Collective Bargaining Agreement for the Commercial Sectors, S.I 45 of 1993.  This should be affected within 4 days from the issue date of this award.”

The Appellants were dissatisfied and lodged the present appeal.  The appeal is noted on the following grounds;

The Honorable Arbitrator grossly erred in law in holding that the Appellants were on a fixed term contract of one year.

Even if the Appellants were on a fixed contract of one year, the Honourable Arbitrator grossly erred in failing to give effect to the requirements that at least two months’ notice was required to be given.

One a notice of less than two months was given, it follows that no valid notice was given.

The Honourable Arbitrator erred in holding that the omission to give two months’ notice could be compensated by the payment of two months’ pay.

The Honourable Arbitrator was supposed to hold that no requires notice was given hence the termination was unlawful.

The Honourable Arbitrator also grossly erred by holding that the remedy for Respondent’s unlawful actions lay in paying the Appellants’ one month’s notice pay.

The Honourable Arbitrator also erred in law in equating notice period to notice pay.

A notice period that is required to be given is different from the number of month’s pay to be given upon an employee’s termination of employment.

The Honourable Arbitrator’s approach smacks of bias and interest in the matter.

The Honourable Arbitrator seriously erred in not giving effect to letters extending the Appellants’ contracts.

The Arbitrator surmised that on a balance of probability this was a typing error.

Written documents must speak for themselves.

8. The Honourable Arbitrator also failed in holding that there was no legitimate

expectation on the part of the Appellants to have their contracts renewed.

There was incontrovertible evidence that Respondent was on an expansion drive and was employing more personnel.

9. In the circumstances, it is submitted that the appeal be upheld with costs.

I turn to address the grounds of appeal seriatim.

The first issue raised by the appeal is based on the nature of the contract between the parties. The Appellants submission is that the Arbitrator grossly erred in holding that the Appellants were on a fixed term contract of one year whereas Appellants’ position is that they were on a contract without fixed duration. The Arbitrator dismissed the Appellants’ allegation that they had been made to sign the contracts without being given an opportunity to read and understand the contracts. He dismissed the allegations on the basis of ‘caveat subscripto’ rule. I was satisfied on the basis of the facts and evidence in the record that the Arbitrator did not err in this regard. The facts clearly point to Appellants freely and voluntarily appending their signatures to the  contract of fixed duration. The argument that the date of termination was inserted without their knowledge is simply unacceptable.

The second issue raised pertains to the aspect of notice. Appellants submission is that the Arbitrator erred by holding that the omission by Respondent to give two months notice could be remedied by payment of two months’ pay. It was also the Appellants’ further submissions that  Arbitrator erred in equating notice period to notice pay. The Respondent response on the aspect is that by virtue of Section 12(4)(b) of the Labour Act [Cap 28:01] a contract of one year but less than two years is terminable by the issuance of two months notice.

Section 12(4) (b) of the Labour Act [Cap 28:01] which was aptly referred to by the Respondents provides as follows;

“12(4)(b)  	 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 -

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two months in the case of a contract for a period of one year or more but less than two years.

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It is clear that appropriate notice period in this case as the contract period exceeded one year by one day was two months. The Appellants’ submission that because the Respondent failed to give two months’ notice given hence the termination was unlawful is simply unacceptable. It is correct as alluded that the Respondent breached the clear provisions of the Act by failing to give two months’ notice. The remedy for that in my view is specific performance. As the Appellants had already been paid one month as notice pay which money they duly accepted the Arbitrator directed that the Respondent pay Appellants the balance of one month’s salary as cash in lieu of notice. The Arbitrator’s conclusion on this aspect is one any reasonable court would have reached on the facts.

The Appellants also raised the point that the fact that the duration of the contract was one year one day they should have been considered as now on contracts without limit of time. The Respondent did not agree submitting that the contract between the parties was of a fixed duration and therefore was terminable by issuance of notice.  The Arbitrator in his award agreed with Respondent’s submission and found that the extension by one day could on a balance of probability be a typing error.

It is clear from the facts in the record that the parties entered into a contract of fixed duration. The fact that the contract had been extended by one day does not on its own result in a mutation of the contract from being a fixed term contract to a contract without limit of time. Indeed the Appellants have not laid any clear legal basis for the submission. I would consequently dismiss the point.

The last issue raised by this appeal is based on the concept of legitimate expectation. The Arbitrator having concluded that there was no legitimate expectation on the part of Appellants to have their contracts renewed the Appellant’s submission before this court is that the Arbitrator erred in this regard. There was in Appellants view incontrovertible evidence that Respondent was on an expansion drive and was employing more people. The Respondent disputes that they were persons engaged in place of the Appellants. There had also been no promise made to the Appellants that they would be either be engaged on a permanent basis or that their contracts would be renewed.

The concept of legitimate expectation is based on a common law principle. It has however been codified and modified by the legislature in Section 12 B (3) of the Labour Act [Cap 28:01]. Under this section an employee claim has to prove two requirements in order to succeed in a claim for wrongful dismissal. He has to prove firstly that he had a legitimate expectation to be re-engaged and secondly that another person had been engaged in his stead to do his work. The Appellants in this case clearly failed to discharge the onus on them to show that other persons had been engaged in their stead. Thus the Appellants failed to show how they were unfairly dismissal in terms of Section 12 B of the Act.

The appeal is consequently dismissed with no order as to costs. The arbitral award handed down on 27th January 2012 is hereby upheld.

Mbidzo, Muchadehama & Makoni – Appellants legal practitioners