Zimbabwe Electricity Transmission and Distribution Company v Tapiwa Denhere

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/409/2014
HARARE, 11 JUNE 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/409/2014

HARARE, 11 JUNE 2014		                                  CASE NO. LC/H/622/13

AND 04 JULY 2014

In the matter between:-

ZIMBABWE ELECTRICITY TRANSMISSION		Appellant

AND DISTRIBUTION COMPANY

And

TAPIWA DENHERE						Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. A. K. Maguchu (Legal Practitioner)

For Respondent		Mr. L. Chimuriwo (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the Arbitration Award of Honourable Arbitrator Chimhuka which was issued on the 28th of June 2013.  The Award was couched as follows;

“In the circumstances reinstatement would be the appropriate remedy.

I therefore make the order that:

The claimant be and is hereby reinstated to his former position without loss of salary and benefits.

Alternatively, if reinstatement is no longer tenable, the Respondent to pay the claimant damages in lieu of reinstatement.

Settlement of the award to be done within 14 days of receipt.”

The brief history of this case is that Respondent was employed on a three (3) month contract as a Loss Control Assistant.  The contract was renewed many times.  The Respondent is denying that he signed the last written contract which was going to expire on the 31st December 2011.  He is alleging that he worked under a contract which did not state the date of expiry.  Respondent has therefore submitted that he was unduly terminated.  Conciliation proceedings could not produce a settlement and the matter was referred for arbitration before Honourable Arbitrator Chimhuka.

The Appellant has therefore appealed to this court against the arbitral award citing the following grounds,

The Arbitrator erred on a point of law and misdirected himself in finding that the continuous renewal of a fixed term contract by an employer converts the nature of the contract to a contract without limit of time and that Respondent was therefore on a permanent contract and had a reasonable expectation of renewal.

The Arbitrator erred on a question of law in finding that the placing of Respondent on short fixed – term contracts amounted to casualization of labour.

The Arbitrator erred on a question of law by finding that Respondent ought to have been given three (3) months notice before his dismissal and he was therefore unfairly dismissed.  The Respondent was not a permanent employee and therefore the termination of his contract did not require three (3) months notice.  The Respondent was however given the requisite notice of termination of contract before it had expired.  The contract was thus procedurally terminated.

The Arbitrator erred by accepting Respondent’s bare denial of having signed the contract.

The Appellant therefore prayed that the Arbitration Award be set aside.

The Respondent on the other hand told the court that despite having a non renewable clause the contract was renewed over seven times thereby creating a regular practice.  It is because of this continuous practice that Respondent had a reasonable expectation that his contract would be renewed.  The expectation was induced by the Appellant’s actions as it was the decision maker.  The Respondent stated that he was entitled to three months’ notice as the Appellant had created a regular practice of receiving Respondent’s contract of employment.  The Respondent also told the court that Appellant converted his contract of employment into a contract of employment without limit of time.

It was on these grounds that the Respondent applied for the dismissal of the Appeal.

It is common cause that

The Respondent’s fixed term contracts of employment were renewed on several occasions.

The Respondent was not given notice on termination of contract.

The Respondent acknowledged his signature on the last contract of employment.

What is to be decided is whether;

The renewing of the three (3) months contract more than seven (7) times amounted to casualisation of labour in terms of the Labour Act.

Whether or not the Respondent had a legitimate expectation of having the contract renewed.

The Respondent has submitted that the contract that was entered into was a probation contract as opposed to a full time fixed contract.  In probation contracts employees had a legitimate expectation of becoming permanent employees.  The Respondent having performed his duties well he expected to be permanently employed and was supposed to be given notice of termination of contract.

To start with where an employee is on probation no matter how much an employee expects to became a permanent employee it is up to the employer to decide whether the job was performed satisfactorily and to engage the employee on permanent basis or not to do so.  The fact that the employee believed that he performed his duties well is neither here nor there.

The other issue to be decided is whether the renewal of fixed term contracts more than seven (7) times amounted to casualisation of labour.  In the case of Metal and Allied Workers Union of S.A. and Others vs Screenex Wire Earing Manufacturers (Pvt) Ltd 1985 (6) ILJ 75 (lc) the court held that a fixed term contract comes to an end at the expiration of the specified period.  It was also held that such termination does not amount to dismissal.

Section 12 (3) of the Labour Act states that

“A contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work of for the performance of specific service, shall be deemed to be a contract without limit of time.”

In this case the contract specified the duration and dates of termination hence this section does not apply to the Respondent.  The fact that the contract was continuously renewed did not make the Respondent a permanent employee.

Section 12 (3) of the Labour Act further states that:

“Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.”

This section clearly shows that a casual worker is only regard as an employee on a contract without limit of time if he is engaged for more than six (6) weeks in any four (4) consecutive months by one employer.  The Respondent in this case was employed on three (3) months fixed term contract.  The contracts had a commencement and expiry date.  They were renewed on more than (7) seven occasions.  Given this scenario such renewals of fixed term contracts does not amount to casualisation of labour.  The Respondent was engaged under contracts that are in excess of six weeks.

The court is also going to decide on whether Respondent had a legitimate expectation of employment.  I have already stated above that where one labours under the belief that he or she would be engaged on permanent basis after probation is not a legitimate ground for claiming legitimate expectation.

The case of Matate & Ors v Ministry of Local Government & Ors HH -98 -07 states the requirements of legitimate expectation as follows;

“(1) Representation underlying expectation must be clear unambiguous and devoid of relevant qualification.

(2)  Expectation must be reasonable.

(3)  Representation must have been induced by decision maker.

(4) Representation must be one which was competent and lawful for decision maker to make without which relevance cannot be legitimate.”

The first requirement is that the Representation underlying expectation must be clear, unambiguous and devoid of relevant qualification.  It is this court’ s view that the continuous renewal of the contracts as fixed term three (3) months contract clearly shows that the Appellant was renewing the  contracts depending on the work available.  Continuous renewal was not a warranty that the Respondent worked be permanently engaged.  If at all the contract was to be renewed this court agrees with the Appellant’s submission that renewal could only be on the same terms and conditions as was being done in the past.  Furthermore section 12 B (3) (b) of the Labour Act states that,

“An employee is deemed to have been unfairly dismissed

(b) If on termination of an employment contract of fixed duration, the employee

(i)  had a legitimate expectation of being re-engaged, and

(ii) Another person was engaged instead of the employee.”

No evidence was adduced to show that another person was hired in Respondent’s place.  This also therefore means that the expectation to be permanently engaged was unreasonable.  It also follows that the continuous renewal of the short – fixed contracts of employment could not induced legitimate expectation on a reasonable person on the streets as the contracts clearly indicated the dates of engagement and termination of contract.

The Appellant’s decision could have been competent but it does not mean that deciding otherwise would have made the decision unlawful.

Having come to the conclusion given above the Respondent was not entitled to (3) three months notice of termination of contract.

The Respondent was not a permanent employee and this did not require three months notice as provided for in section 12 (4) of the Labour Act.

This court also agrees with the Appellant when it stated that payslips were not proof that Respondent had been re-engaged as any employee can get a payslip.

To that end therefore this court finds merit in the appeal.

Accordingly it is ordered that

The Arbitral Award of Honourable Arbitrator Chimhuka which was issued on the 28th of June 2013 be and is hereby set aside.

DUBE, MANIKAI & HWACHA, Appellant’s legal practitioners

LAWMAN CHIMURIWO ATTORNEYS AT LAW, Respondent’s legal practitioners