Wilbert Mutangiri v The Labour Officer & Dharwizi Transport (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/7/24
HARARE, 12 SEPTEMBER 2024
CASE NO LC/H/415/23
17 JANUARY 2024
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WILBERT MUTANGIRI	2nd RESPONDENT

Before the Honourable G. Musariri Judge:

On the 25th April 2023 at Harare, applicant in his capacity as a Labour Officer, issued a ruling. He ordered 1st respondent (employer) to pay 2nd respondent (employee) an amount of US12,000-00 as damages for unlawful termination of employment. Apparently, the employer did not comply with the ruling. Then applicant applied to this Court for the confirmation of his ruling in terms of section 93(5a) of the Labour Act Chapter 28:01 hereafter called the Act. The employee supported the application whilst the employer opposed it. The factual background is aptly captured in the applicant’s ruling thus,

“The Claimant was engaged by the Respondent as a Finance Manager and was entitled to a net monthly salary of US $1 500 payable at the ongoing interbank rate plus $750 cash and $250 target-based allowance after probation.

The Claimant ….

By operation of law (considering both the Labour Act and the herein signed contract), the Claimant’s 3 months’ probation period was to end on the 9th day of April 2022. However, on the 16th of May 2022, the Respondent wrote a letter to the Claimant that formerly informed him about the termination of his contract of employment….

The Claimant opined that during his probation period, (that is from the 10th January, 2022 to the 9th of May 2022), he was never appraised as he continued to render his services. The Claimant argued that by conduct, he took it to be common cause that the Respondent was happy with his performance during his probation period. The termination of the Claimant’s contract of employment after his probation period on the pretext of him being unsuccessful during the probation was argued as unfair and/or unlawful labour practice.

The Respondent was in perfect agreement that probation is a once off thing and non- renewable. However, the Respondent argued that at the expiry of probation by the 10th of April 2022, the Claimant’s contract was tacitly translocated by another 3 months fixed term contract as per common law. In that line of argument, the Respondent asserted that the Claimant’s herein remedy in respect of the claim of unfair dismissal would be payment of damages equivalent to the unexpired portion of the 3 moths fixed- term contract that has been tacitly translocated, (i.e. 10 April – 10 July 2022).”

Applicant was evidently persuaded by the employee’s argument that the contract of employment was unlawfully terminated. On that basis he awarded damages to the employee amounting to the wages of the unexpired portion of the contract (8 months). In this court the employer based its opposition on clause 14 of the employment contract which provides;

“The contract may be renewed on the same terms and conditions by the employer in its entire discretion. In the event of the employee continuing with his or her employment beyond the fixed date with the tacit or explicit consent of the employer but without formal written extension, it shall be assumed that the contract has been renewed on the same terms and conditions but on a month to month basis for a period of one month at a time. Specifically, the parties agree that no permanency shall be inferred or deemed.”

On the basis of this clause the employer argued that at most the employee would be entitled to one (1) month’s wages as damages. The employer is clearly wrong in relying on the clause. Its wording shows that it covers events after “the fixed date” which is the end-date of the contract, that is the 31st December 2022 as set out in clause 3. The employment relationship did not extend to the fixed date. Thus clause 14 is inapplicable. The main argument that the probation relocated for another three (3) months is wrong for 2 reasons-

Firstly, relocation for 3 months’ amounts to a renewal of the probation which is contrary to the provision of section 12(5) of the Act.

“A contract of employment may provide in writing for a single non-renewable probationary period of no more than

(a) …..

(b) Three months in any other case; during which notice of termination of the contract to be given by either party may be one day in case of casual work or seasonal work or two weeks in any other case.”

Secondly case law supports the employee’s position. In the matter of St Giles v Patsanza SC 59/18

Guvava JA  wrote that

“It seems to me that the appellant having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months’ probationary period. Applying s 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three-month period of probation.

Clearly, therefore, in these circumstances the court a quo was correct in finding that the respondent had become a permanent employee.”

Likewise, the employee in casu became a permanent employee because of the employer’s failure to terminate him at the end of his probation.

However, I am not satisfied with the award of damages in respect of the remainder of the fixed-term. The employee was obliged to mitigate his damages. Applicant found that the employee ought to have secured another job albeit at a lower level. He (applicant) was reluctant to do so. Thus I consider that his damages should be reduced to his wages for the requisite notice period. A twelve months contract has a notice period per s 12(4)b of the Act, of two months. Applicant should have awarded damages as follows;

US$1500 x 2	-	3000

US$ 750  x 2	1500

Total	US4500

Accordingly applicant’s ruling should be confirmed but in the reduced amount as calculated above.

Wherefore it is ordered that;

The application for confirmation of ruling be and is hereby confirmed on the terms herein;

The 1st respondent shall pay the 2nd respondent an amount of US$4500-00 together with interest thereon at the prescribed rate from the 16th May 2022 (termination) to the date of payment; and

Each party shall bear its own costs.

J-U-D-G-E