Wellington Magama v Great Zimbabwe University

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/MS/12/2016
HARARE, 15 MARCH 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/MS/12/2016

HARARE, 15 MARCH 2016			     	    CASE NO. LC/MS/60/16

AND 13 MAY 2016

In the matter between:-

WELLINGTON MAGAMA				 			Appellant

And

GREAT ZIMBABWE UNIVERSITY					Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr W. Makumire (Trade Unionist)

For Respondent	Mr W. Jaravaza (Legal Practitioner)

HOVE, J:

The appellant in this case was employed by the Great Zimbabwe University as Sports Officer.  He was employed on a fixed term basis and assumed duty on 7 January 2013.

On 20 June 2013, ten days before the expiration of appellant’s contract, respondent wrote a letter to appellant reminding him, that his contract was to expire on 30 June 2013.

The contract was then terminated on 30 June 2013.

The appellant challenged the termination and argued that he had been unfairly dismissed.  He argued that he had a legitimate expectation to be engaged and that someone else had been employed in his stead.  He also alleged that the respondent was wrongfully casualizing labour.

The arbitrator, in analyzing the evidence placed before him, found that he had jurisdiction to deal with issues of casualization of labour but he found that the appellant had totally misplaced his arguments in this regard.  He found that the appellant’s prepositions were not tenable on the legal authorities or principles governing casualization of labour.

The arbitrator also found that there was no basis for a legitimate expectation on the part of the appellant as the expectation must have a reasonable basis.  Finally he found that the appellant had not managed to prove that another person was engaged instead of him.

The appellant was aggrieved.  He appealed to this court and alleged that the arbitral award was so grossly unreasonable that no reasonable person who had applied his mind to the facts before him would have come to that conclusion.

He raises three grounds of appeal.  In brief, the first ground alleges that the arbitrator grossly misdirected himself when he found that there was no legitimate expectation.  The basis of this claim is that on the authority of Dierks v University of South Africa (199) 4 BLLR 304 (LC).  The contract could not be terminated since the job existed for an indefinite period.

The second ground of appeal argues that there was enough evidence to show that someone else was employed in his stead and the arbitrator erred by concludingthat appellant had failed to prove the same.

Finally it was submitted in the 3rd ground of appeal that

“… while the arbitrator had dismissed the respondent’s claim that the arbitrator had no jurisdiction deal with the issue of casualization of labour, no further determination was done (sic) on that issue.  It is submitted that the failure by the arbitrator to address an issue discussed before him constitutes a gross misdirection ….”

The law governing the termination of fixed term contracts was at the time that these issues arose and argued, fairly settled.  The Labour Act [Chapter 28:01] (the Labour Act) provides as follows in section 12B (3) (b)

3.	“An employee is deemed to have been unfairly dismissed.

….

if, on termination for contract of fixed duration, the employee –

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

To prove unfair dismissal when one is employed on fixed term basis, one must prove in terms of law that

he had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.

In terms of law, the issue of whether or not the employer has casualized labour is not relevant to the issue of whether or not someone has been unfairly dismissed.  In his analysis of evidence the arbitrator does not record that he dealt with the issue of the casualization of labour.  This would be an irregularity.  The appellant would therefore need to go further and show how he has been prejudiced by such an irregularity.  He has not alleged or demonstrated any prejudice.  The court also is of the opinion that there was no prejudice.  The basis for holding that someone has been unfairly dismissed is whether or not there was a legitimate expectation and whether or not someone else was engaged.  Whether or not there was casualization becomes immaterial and causes appellant no prejudice.

It is an academic issue which will not have any relevance on the issue that is before the court and that was before the arbitrator of whether or not the termination was unfair.  This court, ought to decline to be drown into determining academic and superfluous points whose overall effect would be to force the court to pronounce a Brutum Fulmen.

The real issue for this court to decide is whether the appellant was dismissed unfairly.  These issues are raised in ground number 1 and 2.

In my view, the appellant’s case is hopeless he ought to have been able to show the arbitrator that he had a legitimate expectation And (my emphasis) that someone else was employed instead of him.  The arbitrator reasoned that the basis of the expectation was unreasonable.

This is the correct legal position.  There was no reasonable and rational basis of the expectation.  The fact that the job was continuing has not been recognized by our courts to be a reasonable and national basis for holding a legitimate expectation.

This may have been found to be the case in foreign cases but those cases are of mere persuasive value and neither binds the arbitrator nor this court.  The courts have clearly pronounced the position that binds this court and the arbitrator and the fact that the job is continuing does not take away the legal position that a contract of fixed duration is terminated by effluxion of time.  There is also nothing that the appellant alleges was done by the respondent to give him the basis for having a legitimate expectation. Further no regular practice was established which the appellant can reasonably point to and argue that it formed the basis of his expectation.

See the case of Sithole v P G Industries (Zimbabwe) limited t/a the African Lumber Company (Pvt) Ltd HB 4/09

Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 SC

Magodora & Others v Care International Zimbabwe SC 24/14

The court finds that the arbitrator was correct in terms of the law as expressed in several of the Supreme Court decisions that the existence of a legitimate expectation must have a reasonable and rationale basis.  Further that our courts have not recognized the fact that the job is continuing to be a rational and reasonable basis for one to expect that their fixed contract of employment would be renewed.  If the employee does expect renewal, then that expectation is not legitimate in terms of Section 12B (3) (b) of the Labour Act.

The arbitrator also held that no one else was employed in appellant’s place.  Even if he was wrong in this regard, it will not save the appellant’s appeal as the courts have, again in numerous cases held that the two requirements must both be present.

See Magodora case (supra) and

Chimutimbira v Zimra LC/H/02/2014

Since the court has found that the arbitrator had correctly found that there was no legitimate expectation.  No useful purpose can now be served by interrogating the question of whether or not someone else was engaged in his place.

There is thus no basis for interfering with the arbitral award.  The appeal must therefore fail.

Order

The appeal is dismissed.

Each party will bear its own costs.

Dzimba, Jaravaza & Associates, respondent’s legal practitioners