Zimbabwe Urban Council Workers Union v Municipality of Marondera

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/682/2014
HARARE, 26 SEPTEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/682/2014

HARARE, 26 SEPTEMBER 2014		           		         CASE NO. LC/H/893/13

AND 10 OCTOBER 2014

In the matter between:-

ZIMBABWE URBAN COUNCIL	 				Applicant

WORKERS UNION

And

MUNICIPALITY OF MARONDERA				Respondent

Before The Honorable F.C. Maxwell, Judge

For Applicant		Mr. T. Marume (Legal Practitioner)

For Respondent		Mr. O. Shava (Legal Practitioner)

MAXWELL, J:

This is an application for leave to appeal to the Supreme Court against a decision of this Court handed down on 28 February 2014.  The basis of the application is that

the decision handed down on 28 February 2014 is contrary to the decisions handed down by this Court in other matters.

the Court ought to have made a finding that the workers had a legitimate expectation of being made permanent.

The application was opposed on the basis that Applicant is faulting Court for following a principle guiding appeals that fresh arguments should not be entertained on appeal.  Respondent also argued that Applicant is shifting goal posts as in the appeal they argued that legitimate expectation was not based on the Council resolution but on the hearing of this application it was submitted as the basis for the legitimate expectation.

The background of the matter is that the Applicant represents 89 Marondera Municipality employees who were contract workers.  The employees’ contracts have been renewed every month from the date of engagement for periods ranging from six months to at least eighteen years.  The arbitrator ruled that there was no basis for the claim of casualisation of labour and the legitimate expectation of the employees to be engaged as permanent employees.  The Applicants appealed against that decision and this Court dismissed the appeal with costs for lack of merit.  Applicant then filed the present application.

An application of this nature is governed by Section 92 F of the Labour Act [Chapter 28:01] as well as rule 36 of this Court’s Rules SI 59/2006.  The application must be on a question of law.  It must be made within 30 days from the date of the decision sought to be appealed against and there must be prospects of success on appeal.  I am satisfied that the application meets the first two requirements.  I am however not persuaded that there are prospects of success on appeal.

Applicants fault the Court for finding that the arguments in the authorities cited in the appeal were not brought before the arbitrator.  Applicant argued that the decision in the appeal should have been aligned to the cases already decided in this court.  A perusal of the award and the statement of claim confirms that the arbitrator’s decision cannot be faulted.  As submitted by Respondent this Court made a factual finding that Applicants had not raised those issues before the arbitrator a quo and the draft notice of appeal does not attack that finding.  Applicants have not referred the Court to any document or statement on record to refute that.  I therefore find that there is no prospect of the Superior Court coming to a different conclusion on this aspect.

Applicants also fault the Court for not finding that a basis for legitimate expectation had been established.  Applicants submitted that the legitimate expectation was based on a Council resolution.

This Court made a finding that the arbitrator’s decision could not be faulted as the said resolution had not been officially communicated to the aggrieved employees or to the Applicant.  I am not persuaded that the appellate Court can come to a different conclusion.

Consequently the application must fail.  I accordingly dismiss it with costs.

MATSIKIDZE & MUCHECHE, Applicant’s legal practitioners

MBIDZO MUCHADEHAMA & MAKONI, Respondent’s legal practitioners