MAVANGIRA
JA: This
is the unanimous decision of this court.
This is an appeal against the decision of the Labour court
upholding the appellant's appeal against the arbitrator's finding that the
respondent had legitimate expectation for the renewal of his fixed term
contract.
PRELIMINARY POINT
At
the onset of proceedings Mr Uriri
raised a preliminary point which we dismissed after hearing both parties on
it. We indicated that our reasons for
the dismissal would be given in our main judgment.
The
preliminary point was to the effect that the appellant's Notice of Appeal was
fatally defective on the basis that it fell foul of the provisions of the
Supreme Court (Miscellaneous Appeals and References) Rules, 1975 which require,
in Rule 7, that the date on which the decision appealed against was given must
be stated in the Notice of appeal. The
Notice of Appeal was attacked for stating the date of the decision appealed against
as 6 March 2017 contrary to the date appearing on the face of the
judgment; that date being 20 February 2015.
The
Notice of Appeal in question was filed pursuant to an order by ZIYAMBI JA dated
1 March 2017, which order was issued with the consent of both parties. The order, inter alia, granted leave to the appellant “to appeal against the
judgment of the Labour Court handed down on 6 March 2015”. 6 March 2015 is the
dated stated on the Notice of Appeal that the respondent now seeks to be
nullified. In our view, despite the face
of the Labour Court judgment reflecting 20 February 2015 as the date on which
it was given, both parties understood that the order (by consent) related to
the judgment that is the subject of this appeal.
There
is no justification for the contrary attitude now adopted by the
respondent. Neither has it been alleged
or shown that the respondent is prejudiced by the date stated in the
Notice. According to the parties this
date is the date reflected on the date stamp of the Registrar of the Labour
Court. It is not a “thumb sucked” date
for which there is no explanation as to how it came to be referred to. In any event, as already stated, the order by
consent refers to that date.
We
accordingly dismissed the preliminary point.
THE MERITS
The
appellant gave the respondent notice of both the expiry and the non-renewal of
his 5 year fixed term contract. The
appellant went on to advertise for the post of Commercial Director, a title
which was previously held by the respondent.
Despite
this advertisement, it is not in dispute that no one was employed to take up
this position.
Given
these circumstances, the respondent was of the view that he was unfairly
dismissed in view of the provisions of s 12 B(3)(b) of the Labour Act, [Chapter 28:01]. His main contention was that he had a
legitimate expectation that his contract would be renewed. The arbitrator and the Labour court agreed
with his view.
However,
s 12(b)(3)(b) of the Labour Act requires that for an employee to be deemed to
have been unfairly dismissed in terms of that provision, he must not only
establish that he had a legitimate expectation of being re-engaged, but also
that another person was engaged in his stead.
This
court has held in the case of Magodora
& Others v Care International Zimbabwe, SC 24/14 that these two
requirements are conjunctive and the mere existence of an expectation without
the concomitant engagement of another employee does not suffice.
Applied
to the circumstances of this case, it is evident that even if this court were
to find that the respondent had a legitimate expectation of his contract being
renewed, his claim would fall on the basis that the second requirement was not
met.
In
this respect we find that Mr Uriri's
submission that this issue should be determined on the basis of the doctrine of
fictional fulfilment is without merit.
Accordingly,
the appeal has merit and ought to be upheld.
In view of this finding we find it unnecessary to consider the
appellant's other grounds of appeal.
It
is in the result ordered as follows:-
1. The
appeal is allowed with costs.
2. The
judgment of the court a quo be and is
hereby set aside and substituted with the following:-
“1. The appeal is allowed.
2. The arbitral award rendered by P. Chawira
on 25 January 2012 be and is hereby set aside.”
GWAUNZA JA: I agree
UCHENA JA: I agree
Dube, Manikai
& Hwacha,
appellant's legal practitioners
Matsikidze & Mucheche, respondent's legal
practitioners
