Zimbabwe Newspapers 1980 (Limited) v Patrick Nyamajiwa & 5 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/249/16
HELD HARARE 17 FEBRUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/249/16

HELD HARARE 17 FEBRUARY 2016				CASE NO LC/H/278/15

& 22 APRIL 2016

ZIMBABWE NEWSPAPERS 1980 (LIMITED)			Appellant

PATRICK NYAMAJIWA & 5 OTHERS				Respondents

Before The Honourable G Musariri, Judge

For Appellant			Mr B Museba, Attorney

For Respondent		Mr C Mugari, Unionist

MUSARIRI, J:

On 3 March 2015 arbitrator B Matongera issued an arbitration award.  He upheld respondents’ claim of unlawful dismissal from employment by appellant.  He further ordered appellant to either reinstate respondents or pay them damages in lieu of reinstatement.  Appellant then appealed to this court against the award.  Respondents opposed the appeal.

The grounds of appeal were three-fold as follows

“1. The honourable arbitrator erred and misdirected himself in giving an award that was unsupported by the evidence before him, in the process making a contract for the parties, which is not permissible at law.

2. The honourable arbitrator erred and misdirected himself in refusing the appellant’s stance that legally, a fixed term contract can be terminated upon giving requisite notice, and in refusing to accept the incontrovertible evidence before him, that the individual contracts of the respondents had infact been so terminated.

3.  The honourable arbitrator erred and misdirected himself in failing to distinguish between termination of a fixed term contract on notice, and dismissal, and as a result fell into legal error in concluding that the circumstances before him pertained to the latter, when clearly they did not.”

The gist of respondents’ case is captured in their Response thus

“The honourable arbitrator did not make a contract for the parties but merely pointed to the provisions of the applicable collective bargaining agreement S.I. 74 of 2012 which were violated by the applicant.  That cannot be construed to be making a contract for parties but it is just a matter of interpreting the law that binds the employer employee   relationship.”

In their written submissions, respondents set out the authority they relied on by quoting section 6 (5) of the Collective Bargaining Agreement: Printing, Packaging and Newspaper Industry to the following effect,

“In the case of an employee on fixed term contract no employer shall renew the contract for more than three times in any twelve months.

Any fixed term contract worker who has been employed in that capacity for a period exceeding twelve consecutive months shall be deemed to be a permanent employee on the anniversary date of original employment.”

Apparently this case turns on the effect or validity of this clause in the Collective Bargaining Agreement.  The effect is that appellant, by continued renewal of respondents contracts beyond 12 months, rendered respondents permanent employees.  Appellant resorted to challenging the validity of the clause.  In oral submissions appellant argued that the clause is inconsistent with the provisions of the Labour Act [Chapter 28:01] (hereafter called the Act).  Section 12 (4) d of the Act permits termination of fixed term contracts on two weeks’ notice.  Appellant argued that having given respondents the requisite notice, the termination were lawful.  Any contrary provision in a Collective Bargaining Agreement was invalid, so said appellant.

I disagree with appellant’s case.  The Act and the Collective Bargaining Agreement are not inconsistent with each other.  The Collective Bargaining Agreement simply provides that once fixed-term contracts are renewed to cover a period in excess of one year, they convert to permanent employment.  Once they are thus converted, they are no longer covered by section 12 (4) d.  As permanent employment they fall under section 12 (4) (a) which require three months’ notice of termination.  Thus the notice given by appellant was inadequate.  That rendered the termination unlawful.  For that reason the award by the arbitrator cannot be faulted.

Wherefore it is ordered that;

The appeal be and is hereby dismissed; and

The arbitration award dated 3 March 2015 issued by arbitrator B Matongera is upheld.

G MUSARIRI

J U D G E