Zimbabwe Association of Community Radio Services v Joyce Chiriwo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/595/16
HELD AT HARARE 18 MAY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/595/16

HELD AT HARARE 18 MAY 2016				CASE NO LC/H/933/14

& 23 SEPTEMBER 2016

In the matter between:

ZIMBABWE ASSOCIATION OF COMMUNITY 		Appellant

RADIO SERVICES

And

JOYCE CHIRIWO						Respondent

Before The Honourable Makamure, J

For Appellant			S Bhebhe (Legal Practitioner)

For Respondent		B Museba (Legal Practitioner)

MAKAMAURE J:

The respondent was employed by the appellant on a fixed term contract valid for a year – from January 2013 to December 2013.  During the course of her employment she applied for maternity leave.  Such maternity leave was granted for the period November 2013 to 31 January 2014.

When the contract expired by the effluxion of time while respondent was still on leave, appellant advised her of the same. The appellant also advised the respondent that her contract would not be renewed. The respondent challenged the non-renewal of her contract.  Her challenge was based on the fact that she had been granted maternity leave till 31 January 2014.  Her contention was that she could not have been granted leave until 31 January 2014 if the appellant had not renewed the contract.  In response to that challenge the appellant lifted the decision not to renew her contract after 31 December 2013.

The appellant proceeded to offer the respondent a new three month contract.  The letter to lift the decision reads

“The above matter refers

Following the meeting held today 31 January 2014, at the ZACRAS office and as communicated by Mr P Z Khumalo on behalf of the ZACRAS Board, please be advised that the decision not to renew your contract at the end of December 2013 has been lifted.”

The new contact stated in part:

“This contract is valid for 3 months only and the signing of this contract serves as notice of termination of your contract at the end of March 2014.  If there is any renewal or extension, this will be communicated to you in writing 1 week before the expiry date.”

The respondent declined from accepting the new contract.  She was alleging that the appellant had reneged from the previous contract which was valid for twelve months.  Further the respondent was contending that by granting her maternity leave up to a date after the expiry of her contract, the appellant had created a legitimate expectation that her contract for twelve months had been or would be renewed.  The parties’ position differed and the matter was referred for conciliation and subsequently to arbitration.  The issues for arbitration as summarised by the Learned Arbitrator were:

Whether or not there was termination of contract in terms of S.12 B (3) of the Labour Act

Whether claimant repudiated her contract and whether or not respondent reneged the contract.

Whether or not claimant  has the right to hold onto respondent’s property

Determine the appropriate remedies if any, after the consideration of the above.

It is the position generally that parties to a contract of employment will part ways at

some point in time.  The Labour Act [Chapter 28:01] (the Act) has provisions to cover a situation where an employee is deemed to have been unfairly dismissed.  Section 12 B (3) of the Act provides as follows:

“(3)  An employee is deemed to have been unfairly dismissed –

if the employee terminated the employment with or without notice because the employer deliberately made continued employment intolerable for the employee;

if, on termination of an employment contract of fixed duration, the employee-

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

The Arbitrator in his award correctly found that no legitimate expectation had been created by the employer. However, the Learned Arbitrator proceeded to find in favour of the respondent(then claimant).

It was argued on behalf of the appellant that the Arbitrator fell into error by

concluding that since the respondent’s contract was supposed to terminate on 31 December 2013 but the employer granted her maternity leave till 31 January 2014, the appellant had renewed the respondent’s contract for a further 12 months on the same terms as the previous one.  Mr Bhebhe who appeared on behalf of the appellant argued that the contract between the parties expired on 31 December and thereafter there was no contract of employment between the parties.  Mr Bhebhe submitted that there was no express renewal of contract.  This Mr Bhebhe submitted, was correctly found by the arbitrator. The Arbitrator having made that correct finding the submission continues, that should have been the end of the matter.  It is trite that a contract of fixed term ends with the effluxion of time. After the expiration of such a contract, the employer has no obligation to offer the employee employment. (See Chikonye & Another v Peterhouse 1999 (2) ZLR 329 (S).

It should be noted that maternity leave is a right which upon application cannot be denied or negotiated. The essence of what respondent seems to be suggesting is that the appellant ought to have denied her maternity leave since her contract was to expire at the end of December that year. Had the appellant taken that attitude it would have fallen foul of the purpose of the Labour Act Chapter 28:01 (Act).The Act provides that effect be given to the fundamental rights of employees .The Act in Section 6 provides for the protection of the rights of employees. Maternity leave is one such right.  Section 18 of the Act provides:

“(1)	Unless more favourable conditions have otherwise been provided for in any employment contract or in any enactment, maternity leave shall be granted in terms of this section for a period of ninety eight days on full pay to a female employee who has served for at least one year.

…” (My emphasis)

Section 18 (1) above, in my view envisages a female employee who is either on employment for more than one year ,or on permanent employment.  I say so because it stipulates that the benefit to a female employee “who has served for at least one year.”  The respondent herein required to go on maternity leave before the completion of the year which started in January 2013.However, the said benefit is an entitlement of every woman of child bearing age which is exercisable when the need arises.  As such the appellant had no option but to grant it.

It is common cause that during the course of the respondent’s maternity leave the contract between the parties expired.  The appellant advised the respondent to this effect.  That was the position.  The clear intention of the employer was not to renew the contract.  The fact that the appellant was on maternity leave did not stall the progression of the duration and expiration of her contract of employment with the appellant.  The fact that she was granted maternity leave which expired after the expiration of her contract cannot be interpreted to mean that the appellant had renewed the contract of employment on the same terms as the previous contract.

Counsel referred the court to authority for which the court is grateful.  Mr Bhebhe who appeared on behalf of the appellant referred the court to “A Guide to South African Labour Law” by Rycroft & Jordaan where at p 55 the learned authors state that:

“Where the contract is for a definite or fixed period, it will continue until the end of that period and then lapse automatically”

This is exactly what happened on the present case.  The contract lapsed automatically at the end of the fixed period. Both parties were aware of the duration of the contract.  Probably had the appellant not bothered to advise the respondent about the position, one might suggest that the appellant had then renewed  the respondent’s contract. But even then and as shown above at the end of the agreed period, a contract of a fixed duration automatically lapses. So the appellant was being cautious by formally advising the respondent about a position which she already knew.

In view of the foregoing I find that there is merit in the appeal.  The appeal is accordingly granted.  The arbitral award is set aside in its entirety and is substituted with the following

“The claim by the employee, being without merit, be and is hereby dismissed with costs.”

Kantor & Immerman, appellant’s legal practitioners

Muzangaza, Mandaza & Tomana, respondent’s legal practitioners