Employment Contract re: Fixed Term Contracts, Casualisation of Labour and Tacit Relocation or Tacit Renewal

SC01-12 : AMERICAN FRIENDS SERVICE COMMITTEE vs IRENE CHAUKE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

This is an appeal against the decision of the Labour Court confirming a determination by an arbitrator that there existed an employer/employee relationship between the appellant and the respondent and awarding damages to the respondent for unlawful termination of the contract of employment. Although in its Notice of Appeal, the appellant has stated a number ...

Although in its Notice of Appeal, the appellant has stated a number of grounds of appeal, it attacks the decision of the Labour Court on two bases. The first is that the court a quo misdirected itself in coming to the conclusion that a contract of employment existed between the two parties and the second is that the court a quo erred in confirming the award of damages made by the arbitrator.

Although inelegantly worded, the first and second grounds of appeal raise one issue. That issue is whether the court a quo misdirected itself in coming to the conclusion that, on the facts, the respondent was an employee of the appellant.

I therefore consider that the issue is not simply one of fact, as suggested by the respondent, and that the appeal is properly before this Court.

The facts of this case are largely common cause. There is no need to restate them in any detail. The respondent was initially employed by the appellant on fixed term contracts until September 2007. It is common cause after this period she continued to render services to the appellant. Her employment was extended on several occasions until June 2009 when it was terminated. At the time of termination, she had been on a monthly salary of US$1,500= and was required to work five (5) days per week and eight (8) hours per day. The respondent was also required to carry out the functions of Office Co-ordinator and Programmer and was also required to report on her activities to the Regional Office based in South Africa.

On a careful consideration of these and other facts, I agree that the court a quo did not misdirect itself in coming to the conclusion that the respondent was an employee of the appellant. That ground of appeal must fail.

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

The appellants in this matter were engaged by the respondent on fixed contracts of nine (9) months duration. The last such contract was fixed from 1 October 2006 to 30 June 2007. By letter dated 27 March 2007, the respondent purported to terminate the appellants' contracts of employment before their scheduled date of expiry. ...

The appellants in this matter were engaged by the respondent on fixed contracts of nine (9) months duration. The last such contract was fixed from 1 October 2006 to 30 June 2007.

By letter dated 27 March 2007, the respondent purported to terminate the appellants' contracts of employment before their scheduled date of expiry. The contracts were to terminate on 31 March 2007 and the appellants were to be paid one month's pay in lieu of notice. Clause 21 of the contracts required the application of retrenchment procedures in the event of premature termination. Subsequently, after taking legal advice, the respondent reconsidered its position and accepted that the early termination may have been unlawful. By letter dated 25 May 2007 from its lawyers, it cancelled the termination and reinstated the contracts of employment with full pay up to 30 June 2007, at which date the fixed term contracts would expire without being renewed.

The matter was then referred to arbitration.

The arbitrator held that the appellants had not been retrenched and that the respondent was entitled to act as it did. On appeal to the Labour Court, the arbitrator's decision was upheld. The court found that even if the contracts had been prematurely terminated, the appellants were only entitled to their pay for the duration of their fixed term contracts, that is up to 30 June 2007, and that they were not entitled to any further payment.

The appellants now appeal against that decision.

In their revised grounds of appeal, they seek an order declaring them to have been unfairly dismissed. They also seek an order deeming them to be permanent employees on contracts without limit of time and without loss of salary and benefits, reckoned from the time of dismissal. In the alternative, they should be deemed to have been re-employed for a further period of nine (9) months from the date of dismissal, on the same terms of employment and without loss of salary and benefits.

At the hearing of the appeal, the additional claim for the payment of retrenchment packages, in the event of reinstatement not being possible, was abandoned on the basis that such relief was not competent as it was inconsistent with the primary relief sought.

Unfair Dismissal and Legitimate Expectation

Section 12B of the Labour Act [Chapter 28:01], as amended, regulates dismissal from employment:

“(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed –

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).

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

(a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;

(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.

(4) In any proceedings before a labour officer, designated agent or the Labour Court where the fairness of the dismissal of an employee is in issue, the adjudicating authority shall, in addition to considering the nature or gravity of any misconduct on the part of the dismissed employee, consider whether any mitigation of the misconduct avails to an extent that would have justified action other than dismissal, including the length of the employee's service, the employee's previous disciplinary record, the nature of the employment and any special personal circumstances of the employee.”

Counsel for the appellants submits that the real reasons for the termination of the appellants' contracts were the impact of budgetary constraints and the consequent need to restructure the respondent's operations. This appears from the notices of termination sent to the appellants on 27 March 2007. Because this premature termination was a disguised retrenchment, it constituted unfair dismissal contrary to section 12B(1) as read with sections 2A(1) and 2A(2) of the Labour Act [Chapter 28:01]. Reliance is placed, in this regard, on the decisions in Mabhena v PG Industries HH115-02 and Machaya & Others v Circle Cement (Pvt) Ltd & Another HH115-03.

Counsel for the appellants further submits that the repeated renewals of the appellants' contracts changed their status to that of permanent employees. They had a legitimate expectation of permanency or renewal of their contracts on similar terms. This is so despite the express provision in their contracts stating that there would be no legitimate expectation of further employment beyond the stipulated date of termination. He relies for this proposition on various decisions of the Zimbabwean and South African Labour Courts and contends that the seemingly contrary decision of this Court in UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S) is distinguishable in this respect. Moreover, he argues that section 12B(3)(b) of the Labour Act [Chapter 28:01] is not exhaustive in its application of the doctrine of legitimate expectation and must be applied in conjunction with the protection against unfair dismissal afforded by section 12B(1) of the Labour Act [Chapter 28:01].

Counsel for the respondent submits that the respondent did not violate the appellants' right not to be unfairly dismissed under section 12B(1) of the Labour Act [Chapter 28:01] by terminating their fixed term contracts with effect from the stipulated date of their expiry. He further submits that the legitimate expectation provisions of section 12B(3) of the Labour Act [Chapter 28:01] only apply where another employee is engaged in place of the employee whose fixed term contract is terminated. In the instant case, no one else was employed and the appellants' jobs have effectively been abolished. In any event, the express provision of each of the appellants' contracts was that there was no legitimate expectation of renewal or extension.

I see no reason to disagree with counsel for the respondent's submissions.

Having purported to prematurely terminate the appellants' contracts in March 2007, the respondent realised that it had acted unlawfully. It then remedied its breach in May 2007 by cancelling the earlier termination and reinstating the appellants with full pay up to 30 June 2007. By so doing, the respondent did not terminate the contracts of employment but simply allowed them to lapse by effluxion of time without further extension or renewal. The question of compliance with retrenchment procedures and the payment of retrenchment packages, in terms of clause 21 of the contracts, would only have come into play had the respondent persisted with its premature termination. In this regard, the cases dealing with disguised retrenchment that are relied upon by counsel for the appellants are clearly distinguishable. They do not support his argument because they are concerned with the termination of periodic contracts of indefinite duration as opposed to fixed term contracts.

Although the appellants were not called back to work, they were paid the salary and benefits that were due to them until the expiry of their fixed term contracts. The respondent was clearly entitled to do so by virtue of the express duration of the contracts of employment and cannot therefore be said to have acted in breach of contract. In my view, the appellants were duly compensated, without having worked for three (3) months, and cannot claim to have been unlawfully dismissed within the contemplation of section 12B(1) of the Labour Act [Chapter 28:01].

SC64-15 : TELONE (PVT) LTD vs BIGBOY SENGENDE
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

The question which fell to be determined in this appeal is whether, on a correct interpretation of section 12B(3)(b) of the Labour Act [Chapter 28:01], the respondent was unfairly dismissed. Subsection (3) provides as follows: “(3) An employee is deemed to have been unfairly dismissed - (a) If the employee terminated the contract of employment with or ...

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

(a) If the employee terminated the contract of employment with or without notice because the employer deliberately made continued employment intolerable for the employee;

(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.

The respondent was employed by the appellant on a fixed term contract for a period of two years from 30 March 2009 to 29 March 2011. Before the expiry of the contract, it was renewed for a further year until 31 March 2012. Clause 9 of the renewal contract provided:

“The renewal of this contract is entered into with no guarantee of long term employment or any expectation of any further renewals.”

During that year, the respondent worked with a student on attachment named Mapepa. It is common cause that following the completion of a year on attachment, Mapepa was given a one year contract operative from 2 March 2012.

On 26 March 2012, the respondent was advised by the appellant that his contract would not be renewed further. The respondent was dissatisfied and caused the dispute, in due course, to be placed before an arbitrator. The arbitrator found;

(i) That by placing the respondent on continuous fixed term contracts the appellant had 'casualised labour';

(ii) That the job in question was of a permanent nature and that the respondent ought to be reinstated as a permanent employee;

(iii) That the clause to the contrary contained in the contract was of no consequence;

(iv) That the student who was given a contract for a year had effectively replaced the respondent;

In view of the above it was the arbitrator's finding that the appellant had violated the provisions of section 12B(3)(b) of the Labour Act [Chapter 28:01] set out above. He ordered the reinstatement of the respondent to his post without loss of salary; and that the appellant confirm his position as permanent. In the alternative, the parties were to agree on damages in lieu of reinstatement failing which they were to approach the arbitrator for quantification of the said damages.

The appellant, aggrieved by the arbitral award, appealed to the Labour Court. That court dismissed the appeal holding that a clause such as the one set out above was a ploy to circumvent the provisions of section 12B(3)(b) of the Labour Act [Chapter 28:01] and ought to be ignored. It accordingly upheld the award.

Still dissatisfied, the appellant appealed to this Court.

WHETHER THE RESPONDENT WAS UNFAIRLY DISMISSED

As is clear from the legislative provision (section 12B(3)(b) of the Labour Act [Chapter 28:01]), the employee who alleges that his dismissal should be deemed unfair must show:

(i) That he had a contract of fixed duration;

(ii) That he had a legitimate expectation to be re-engaged; and

(iii) That another employee was engaged in his stead.

See UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S).

The first requirement is common cause between the parties. It is mentioned here only to draw attention to the fact, firstly, that contracts of fixed duration are part of our Labour Law and the adoption of that type of contract is a prerogative of the employer; and, secondly, that the contract of fixed duration is the basis of the legitimate expectation sought to be enforced by the respondent. If there is no contract of fixed duration the issue of legitimate expectation does not arise. It is therefore a contradiction to state that the respondent had a legitimate expectation to be re-engaged and at the same time find that the contract of fixed duration is an abuse of authority or casualization of labour as put by the arbitrator and the Labour Court respectively. For, in terms of section 12B(3)(b) of the Labour Act [Chapter 28:01] there can be no legitimate expectation without a contract of fixed duration.

Section 12 of the Labour Act [Chapter 28:01] makes specific provision for employment contracts of fixed duration. It provides:

“12 Duration, particulars and termination of employment contract

(1)…,.

(2) An employer shall, upon engagement of an employee, inform the employee, in writing, of the following particulars -

(a) The name and address of the employer;

(b) The period of time, if limited, for which the employee is engaged;

(c)…,.

The Labour Court therefore erred in upholding the arbitrator's ill-advised description of such contracts, which are a clear exercise of a right conferred by the Labour Act, as an abuse of authority.

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS
Ruled By: ZIYAMBI JA

The judgment of the Labour Court sought to be appealed against made certain findings of law one of which was, that the applicant had 'casualised labour' by requiring the respondents to sign successive fixed term contracts. The Labour Court also found that a legitimate expectation, allegedly held by the respondents to be hired as permanent ...

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

This is an appeal against the decision of the Labour Court dismissing an appeal against the award of an arbitrator made in favour of the respondents. Background The respondents, who are forty-three in number, were employed by the appellant on monthly contracts that were continuously renewed. In the longest instance, the employee's contract had been renewed ...

This is an appeal against the decision of the Labour Court dismissing an appeal against the award of an arbitrator made in favour of the respondents.

Background

The respondents, who are forty-three in number, were employed by the appellant on monthly contracts that were continuously renewed. In the longest instance, the employee's contract had been renewed for six years. On 19 May 2010, the appellant terminated all forty-three contracts on notice without giving any reason other than that the contracts had expired.

The dispute between the parties was referred to arbitration. The respondents claimed that they had become permanent employees in terms of section 12(3) of the Labour Act [Chapter 28:01]. The arbitrator upheld the respondents' claims and ordered their reinstatement or the payment of damages in lieu of reinstatement.

The appellant then appealed against that award to the Labour Court.

Decision of the Labour Court

In arriving at its decision, the Labour Court referred to various international labour standards that require safeguards against the recourse to fixed term contracts that are designed to avoid the protection of employees from the termination of their employment without valid reason. The court found that the relevant provisions of the Labour Act conform with these standards in order to protect workers from short term contracts generally. In particular, where a short term contract is repeated for more than six weeks in any period of four consecutive months, it becomes a contract of permanent employment by virtue of section 12(3) of the Labour Act [Chapter 28:01].

The court further held that the practice of repeated short term contracts constitutes casualisation of labour prohibited by the Labour Act as read with the governing international standards and that this is buttressed by section 46(1) of the Constitution, which enjoins the courts to take international law into account, and by section 65(4) of the Constitution, which requires the implementation of equitable and satisfactory conditions of work.

With respect to the final ground of appeal, relating to the arbitrator's adjustment of the allowances payable to two of the respondents, the court found that the arbitrator's award was grounded in the information that was presented to him and did not involve any gross misdirection on the facts. Therefore, there was no basis for interfering with that part of the award.

The appeal was accordingly dismissed in its entirety with each party being ordered to bear its own costs.

Grounds of Appeal and Submissions by Counsel

The grounds of appeal herein are somewhat prolix and repetitive. In summary, they aver that the court a quo erred in the following respects:

(i) Interpreting the provisions of the Labour Act to mean that the respondents had become permanent employees.

(ii) Holding that the renewal of fixed term contracts in casu amounted to the casualisation of labour.

(iii) Mis-interpreting and mis-applying the relevant international labour standards.

(iv) Not holding that the respondents' claims had prescribed; such claims having been made more than two years after the initial contracts had expired….,.

In relation to the substantive grounds of appeal, counsel for the appellant submits that international instruments cannot avail where the domestic law is clear and the court a quo clearly misdirected itself in importing the concept of casualisation of labour. By the same token, the court's reliance on the historical context was unnecessary and misplaced because the relevant provisions of the Labour Act are clear and do not entail any absurdity. The Act draws a clear distinction between casual employment and fixed term employment and expressly allows the creation, renewal and termination of fixed term contracts - even on a monthly basis. This is buttressed by section 5(d) of the Labour (National Employment Code of Conduct) Regulations 2006 (S.I. 15/2006) which stipulates that a fixed term contract may be lawfully terminated at the expiry of its fixed duration.

Counsel for the respondent accepts that the Labour Act differentiates between fixed term and casual employment and also contemplates the renewal of fixed term contracts. He submits that this accords with the literal interpretation of the relevant provisions of the Act. He further submits that the court a quo correctly proceeded beyond this literal interpretation to consider the mischief aimed at by section 12(3) of the Labour Act [Chapter 28:01]. In this regard, the historical context shows that the legislature intended to protect employees against the abuse of fixed term contracts where permanent employment is available. The literal application of section 12(3) of the Labour Act [Chapter 28:01] leads to the absurdity of rejecting the casualisation of labour and yet allowing the renewal of fixed term contracts.

Relevant Statutory and Constitutional Provisions

Section 12(3) of the Labour Act [Chapter 28:01], the interpretation of which constitutes the crux of this appeal, regulates the duration of a contract of employment that does not specify its duration or date of termination. It provides as follows:

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

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.”

I note, in passing that section 12 of the Labour Act [Chapter 28:01] was recently amended by section 4 of the Labour Amendment Act 2015 (No.5 of 2015) in several respects appertaining to the continued subsistence of fixed term contracts and contracts for casual, seasonal or piece work. The amendment also deals with the termination of contracts by notice and the payment of compensation for loss of employment. By virtue of section 18 of the amending Act, section 12 of the principal Act, as amended, “applies to every employee whose services were terminated on three months' notice on or after the 17^th July, 2015”.

These retrospective changes to the Labour Act were obviously designed to address the stark implications of the landmark decision of this Court in Nyamande & Donga v Zuva Petroleum (Pvt) Ltd SC43-15.

At any rate, they do not apply to the respondents in casu as their contracts of employment were terminated in May 2010. Ironically, presumably as an incident of hastily crafted legislation, the intended benefits of the amended provision also do not extend to the appellants in Nyamande & Donga v Zuva Petroleum (Pvt) Ltd SC43-15, as they too were discharged before the stipulated date of 17 July 2015; that being the date when judgment was handed down in that case.

Turning to the relevant Constitutional provisions, the learned judge a quo invoked section 65(4) as read with section 46(1)(c) of the Constitution to fortify his interpretation of the Labour Act. Section 65(4) of the Constitution declares that:

“Every employee is entitled to just, equitable and satisfactory conditions of work.”

Section 46 governs the interpretation of Chapter 4 of the Constitution, being the Declaration of Rights. With particular reference to international law, it provides that:

“When interpreting this Chapter, a court, tribunal, forum or body -

(a)…,.;

(b)…,.;

(d)…,.;

(e)…,.;

in addition to considering all other relevant factors that are to be taken into account in the interpretation of a Constitution.”

Also relevant for interpretive purposes is section 327 of the Constitution relating to international conventions, treaties and agreements. The salient provisions are contained in sub-sections (2) and (6) as follows:

“(2) An international treaty which has been concluded or executed by the President or under the President's authority –

(a) Does not bind Zimbabwe until it has been approved by Parliament; and

(b) Does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.”

“(6) When interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement.”

Fixed Term Employees or Casual Workers

It seems reasonably self-evident that the relevant provisions of the Labour Act draw a clear distinction between casual or seasonal workers and employees on fixed term contracts. The term 'casual work' is defined, in section 2 of the Labour Act, to mean “work for which an employee is engaged by an employer for not more than a total of six weeks in any four consecutive months;” while 'seasonal work' means “work that is, owing to the nature of the industry, performed only at certain times of the year.”

On the other hand, fixed term contracts are specifically distinguished, in section 12(2)(b) of the Labour Act [Chapter 28:01], which requires the employer to provide written particulars of “the period of time, if limited, for which the employee is engaged,”,and, in section 12B(3)(b), which relates to the consequences of “termination of an employment contract of fixed duration” in certain circumstances.

The distinction is pointedly captured and articulated in section 12(3) of the Labour Act [Chapter 28:01] itself.

This provision recognises three different, and distinct, categories of employment, i.e. –

(i) A contract of fixed duration;

(ii) A contract for casual, seasonal or piece work; and

(iii) A periodic contract without limit of time.

In the first category, the duration or date of termination of the contract is clearly stipulated, whereas in the third category it is not expressly specified. Ordinarily, the same would apply to contracts for casual, seasonal or piece work, being contracts the duration of which cannot be specifically delimited due to the nature of the work that they involve. However, once a contract for casual work exceeds the prescribed period of a total of six weeks in any four consecutive months, it is deemed to have become a contract of employment without limit of time.

The critical question for determination in casu is whether the categories of casual work and fixed term employment are mutually exclusive.

In this regard, the distinguishing characteristics of the two categories are instructive. First and foremost, a fixed term contract expires automatically upon the effluxion of its stipulated period, whereas the duration of a contract of casual work will depend upon the nature of the work involved and the circumstances under which it is to be carried out. It is this indeterminate nature of its duration that entails the deemed conversion of a casual contract into one of indefinite employment in terms of the proviso to section 12(3) of the Labour Act [Chapter 28:01].

On a literal and grammatical interpretation of section 12(3), and without any attendant absurdity, the proviso clearly does not apply to an employee on a fixed term contract.

There are other equally significant distinguishing features as between the two categories of employment:

(i) In terms of section 12(4) of the Labour Act, the periods of notice required to terminate contracts of employment vary according to the duration of the given contract; being only one day in the case of casual or seasonal work.

(ii) Section 12(5) of the Labour Act stipulates different periods of probation and different notice periods during probation in respect of casual or seasonal work as compared with all other contracts of employment.

(iii) Generally speaking, a casual worker is not entitled to the minimum conditions of employment laid down in the Labour Act or in subsidiary regulations or Collective Bargaining Agreements – which is the reason why a casual worker usually receives remuneration at a rate that is higher than the minimum rate so as to compensate for the loss of other prescribed benefits.

(iv) The Consolidated Collective Bargaining Agreement: Engineering and Iron and Steel Industry 1990 (S.I.282/1990), which regulates the sector in casu, specifically differentiates the two forms of employment in section 3(1), by defining a casual worker as one “who is not engaged as a contract worker” and a contract worker as one “who is engaged for a specified period, task or project.”

In the final analysis, having regard to the relevant provisions of the Labour Act and its subsidiary legislation, I take the view that the court a quo patently misdirected itself in concluding that the respondents were casual workers and that they subsequently graduated to the status of employees on indefinite or permanent contracts of employment.

Concept of Casualisation of Labour

The learned judge a quo held that the repeated re-engagement of employees on short term contracts, where work of a permanent nature is available, constitutes the 'casualisation of labour.'

He reasoned that the legislature intended to proscribe this unfair labour practice through section 12(3) of the Labour Act [Chapter 28:01]. In arriving at this proposition, he relied upon earlier decisions of the Labour Court and the injunction in the Labour Act to construe it “in such manner as best ensures the attainment of its purpose” as declared in section 2A(2) of the Labour Act [Chapter 28:01], i.e. 'to advance social justice and democracy in the workplace.' He also relied upon sections 65(4) and 46(1)(c) of the Constitution (cited above) as well as the applicable international labour standards on the subject….,.

The avowed object of section 12 of the Labour Act [Chapter 28:01] is to regulate the duration and termination of employment contracts.

As I have already stated, the proviso to section 12(3) of the Labour Act [Chapter 28:01] is confined to casual workers and cannot be construed to extend to employees on fixed term contracts. In my view, section 12(3) does not, whether explicitly or by necessary implication, prevent an employer from engaging employees for successive fixed terms, provided that they continue to enjoy the full rights and benefits that are accorded under Part IV of the Labour Act and to which they are entitled as fixed term employees. By the same token, employers cannot be burdened or penalised by having fixed term employees foisted upon them on a permanent basis. In this regard, the Labour Court cannot invoke its equitable jurisdiction, on the basis of advancing social justice in the workplace, to insinuate into section 12(3) of the Labour Act [Chapter 28:01] an interpretation that is simply not supported by its unambiguous language. To do so involves the double sin of doing violence to what Parliament itself has enacted as well as rewriting the terms of a contract that has been freely and voluntarily entered into, by altering something so fundamental as its agreed and intended duration.

In short, the concept of casualisation of labour does not form part of section 12 of the Labour Act [Chapter 28:01] as originally framed, i.e. before its amendment, the Labour Amendment Act 2015 (No.5 of 2015).

Impact of International Labour Standards

In interpreting the Labour Act so as to avoid or minimise the casualisation of labour, the court a quo relied upon two instruments formulated under the auspices of the International Labour Organisation, namely, the Termination of Employment Convention 1982 (No.158) and its supplementary Termination of Employment Recommendation 1982 (No.166).

In particular, the court invoked Articles 2.3 and 4 of the Termination of Employment Convention 1982 (No.158). Article 2.3 enjoins Member States to provide adequate safeguards against recourse to fixed term contracts the aim of which is to avoid the protection afforded by the Convention. Article 4 sets out the principal form of such protection by proscribing the termination of employment unless there is a valid reason for such termination connected with the capacity or conduct of the employee or based on the operational requirements of the employer. Paragraph I.3 of the Termination of Employment Recommendation 1982 (No.166) reiterates the injunction to provide safeguards against recourse to fixed term contracts and elaborates the measures to be taken for that purpose, including the deeming of contracts for a specified period of time to be contracts of employment of indeterminate duration, particularly when they are renewed on one or more occasions.

Although the court a quo might have correctly interpreted the substantive protection accorded by these international labour standards, it appears to have overlooked or disregarded two critical aspects bearing upon their application to the case before it.

(i) Firstly, Article 2.2 of the Termination of Employment Convention 1982 (No.158) and Paragraph I.2(b) of the Termination of Employment Recommendation 1982 (No.166) explicitly entitle Member States to exclude certain categories of employed persons from all or some of their provisions. These categories include workers engaged under contracts for a specified period of time or for a specified task, workers on probation or a qualifying period of employment, and workers engaged on a casual basis for a short period.

(ii) Secondly, and more significantly, the learned judge a quo clearly misconceived the principles governing the application of international law in the domestic sphere.

As was observed in Magodora & Others v Care International Zimbabwe SC24-14, at p 6 of the cyclostyled judgment:

“I do not think that the courts are at large, in reliance upon principles derived from international custom or instruments, to strike down the clear and unambiguous language of an Act of Parliament. In any event, international conventions or treaties do not form part of our law unless they are specifically incorporated therein, while international customary law is not internally cognisable where it is inconsistent with an Act of Parliament.”

This common law position is firmly entrenched and codified in the relevant provisions of the Constitution that I have cited earlier. In terms of section 46(1)(c) of the Constitution, courts are enjoined, when interpreting the Declaration of Rights, to take into account all treaties and conventions “to which Zimbabwe is a party.” More pointedly, section 327(2) of the Constitution declares that an international treaty “does not bind Zimbabwe until it has been approved by Parliament” and “does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.” By virtue of section 327(6), the duty of the courts to interpret legislation in a manner that is consistent with any international convention, treaty or agreement is expressly confined to an instrument “which is binding on Zimbabwe.”

According to the ratification lists for International Labour Organisation conventions, as at 30 September 2015, Zimbabwe has not ratified the Termination of Employment Convention 1982 (No.158).

Accordingly, as is explicitly recognised in Article 16 of the Convention, it is not binding upon Zimbabwe, notwithstanding its status as a Member of the International Labour Organisation.

What all of the foregoing means is that the provisions of the Termination of Employment Convention 1982 (No.158), as supplemented by the Termination of Employment Recommendation 1982 (No.166), cannot be invoked as definitive or decisive aids to the interpretation of our legislation. Moreover, unless, and until, those provisions are specifically domesticated, they can be nothing more than persuasive guides in interpreting and applying the law. And even then, they certainly cannot be applied so as to override or negate clear provisions embodied in Acts of Parliament.

In the instant case, the court a quo manifestly misdirected itself in applying the provisions of the Termination of Employment Convention 1982 (No.158) to interpret section 12(3) of the Labour Act [Chapter 28:01] in a manner that exceeded the bounds of its express and unambiguous language.

Disposition

In the result, I take the view that the appeal is merited and must be allowed on the three grounds adverted to above.

In arriving at this conclusion, I am not oblivious to the basic socio-economic reality that pervades the labour market, not only in this country but also almost everywhere else. The markedly unequal bargaining power of prospective employers on the one hand and aspirant employees on the other more often than not entails the latter having to succumb to the dictates of the former insofar as concerns the material terms and conditions, including the duration, of their contracts of employment.

But this is an evil that the legislature is best placed and empowered to combat through the enactment of legislation clearly designed to achieve that purpose….,.

It is accordingly ordered that:

1. The appeal be and is hereby allowed with no order as to costs.

2. The judgment of the court a quo is set aside and substituted as follows:

“(1) The appeal is partially allowed with no order as to costs.

(2) The arbitrator's award dated the 15^th of October 2010 is set aside in respect of his rulings on casualisation of labour and unfair dismissal.

(3) The termination of the respondents' contracts of employment be and is hereby upheld.”

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the entire judgment of the Labour Court upholding the arbitrator's decision that by inviting the respondents for interviews after the termination of their fixed term contracts, the appellant had created in them, a legitimate expectation for their re-engagement as provided for and within the contemplation of section 12B(3)(b) of the Labour ...

The facts leading to this appeal are as follows:

BACKGROUND

The appellant is an international non-governmental organization providing medical humanitarian services in Zimbabwe. The respondents were employed by the appellant on fixed term contracts for various periods running between one month to a full year from 2008 and 2011 in the capacity of guards, with some being employed as “security guard/gardener”.

During the period 2008 and 2011, the appellant had, from time to time, renewed the respondents' contracts of employment. The appellant then faced funding challenges which resulted in the respondents' contracts not being renewed beyond 2011. (Meanwhile, the appellant had since obtained funding for projects in Mbare, Gutu and Chikomba which required guards and gardeners from the areas in which the projects would run).

The respondents claimed, at some time that is not specified in the papers before the court, that they had been unfairly dismissed. They collectively alleged that the appellant still needed their services and still had the funds to continue to engage them after their contracts had expired and that they therefore had a legitimate expectation to be re-engaged which expectation was unlawfully frustrated by the appellant.

At the time that the collective dispute of the alleged unfair dismissal of the respondents by the appellant arose, none of the respondents were employed by the appellant, all their contracts having expired at the end of the specified periods in their various contracts of employment. The allegation was made on the strength of section 12B(3)(b) of the Labour Act [Chapter 28:01] which reads as follows:

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

(a)…,.;

(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.”

After conciliation had failed to settle the dispute, it was referred to arbitration, the terms of reference being to ascertain whether or not the respondents had been unfairly dismissed, and, if so, to find the appropriate remedy.

In their Statement of Claim before the arbitrator, the respondents alleged that sometime in 2010 they were advised that their contracts would not be renewed due to funding constraints then afflicting the appellant, unless the appellant managed to secure funding for projects in Mbare, Gutu and Chikomba. They further alleged that they were advised to apply for the same posts for renewal which they did and they were duly interviewed - along with other people. All the respondents were unsuccessful and twelve other people were engaged in their stead. They made checks regarding the appellant's given reason for taking other people, which was to the effect that the appellant wanted to promote the communities where it would be operating from. Their checks verified that indeed the people engaged in their stead were people from the said communities.

Nonetheless, the respondents maintained that they had formed a legitimate expectation of renewal and that this was based on previous renewals of their contracts of employment and also on “the undertaking that the contracts would be renewed” allegedly made by the appellant. According to the respondents, the explanation that the appellant had failed to renew their contracts because they wanted to promote local people from the places that they were going to operate from was not a legally valid excuse.

The appellant's defence was that there was no basis for the respondents to have formed a legitimate expectation of the renewal of their contracts. The appellant denied that there was any undertaking that the contracts would be renewed if funding was secured.

The arbitrator found in favour of the respondents. She found that having invited the respondents for interviews, the appellant had thereafter flouted section 12B(3)(b) of the Labour Act [Chapter 28:01] because the respondents' hopes for re-engagement were raised yet the appellant employed other people instead. The arbitrator also found that the Labour Act justifies legitimate expectation where the fixed-term contract of employment of an employee is terminated and another employee is engaged. The arbitrator dismissed the appellant's defence that it had to employ people from other communities on the basis of lack of evidence to justify such defence. Thereafter, an award was made reinstating the respondents to their original positions within the appellant's employ without loss of salary and benefits from the date of unlawful dismissal, or, alternatively, one year's salary each in lieu of reinstatement.

Aggrieved by that decision, the appellant noted an appeal in the Labour Court. As with the arbitrator, the Labour Court did not accord any significance or validity to the appellant's reason that it had to engage people from communities that they were to operate from. The Labour Court found that once an employee shows that another person was employed in their stead, they would have met the legal requirements set out in the Labour Act for claim to legitimate expectation to succeed. The Labour Court also concurred with the arbitrator's finding that the invitation of the respondents to interviews created, on their part, a reasonable expectation of re-engagement.

On the question of the award for damages, the Labour Court found that the arbitrator erred in awarding damages without any evidence having been led before her. In the result, the Labour Court upheld the award in part, overturning it only in so far as it related to damages. The appellant, in turn, now appeals against that decision before this Court on the following grounds;

1. The Honourable Court a quo erred in finding that the Honourable Arbitrator did not misdirect herself in concluding that the requirements of section 12B(3)(b) of the Labour Act [Chapter 28:01] had been met.

2. The court a quo erred and misdirected itself in that it failed to appreciate fully the circumstances under which an expectation of re-engagement is legitimate. The court failed to fully appreciate all the circumstances of the case and accordingly arrived at a wrong conclusion.

3. More particularly, the court a quo erred at law in confirming the arbitrator's decision that the fact that some respondents were called for interviews created a legitimate expectation of renewal of employment on the respondents' part.

4. The court a quo seriously misdirected itself on the facts and/or failed to appreciate all the facts of the matter which misdirection is unreasonable in the circumstances and amounts to a misdirection at law.

SUBMISSIONS ON APPEAL

Counsel for the appellant argued that the arbitrator erred in finding that by inviting the respondents for interviews, after their contracts had terminated, the appellant created a legitimate expectation that they would be re-engaged. He submitted that an interview is merely a process of assessment, and, thus, one cannot form a legitimate expectation by simply being called for an interview in the absence of communication that one would be guaranteed a job placement whether or not one performed satisfactorily in the interview.

In order to emphasise that the appellant did not plant the idea of any legitimate expectation of re-engagement in the minds of the respondents, the appellant's counsel relied on a provision in the letter that terminated the respondents' employment and paragraph 2 of all the respondents' contracts. The appellant's counsel relied on one part of the letter which reads as follows;

“This letter serves to notify you that your contract of employment which is terminating on…, will not be renewed.”

Paragraph 2 of the contract, in turn, provided as follows:

“2. Duration

The contract is for a fixed duration starting on the…., to…,. At the expiration of the period contracted for, this contract shall terminate automatically. The Employer does not guarantee employment beyond this contract.”…,.

In light of the above, the appellant argued that there could be no way that the respondents could have rationally formed a legitimate expectation of being re-engaged by the appellant even if they had been called in for interviews.

On the other hand, counsel for the respondents argued that as it was known to the appellant that the funds for the grant after the expiration of the respondents' contracts were location specific, the question arising was why it then invited the respondents for interviews when it was known that they would not qualify on that basis. Questioned on the significance that ought to be given to the contents of the letters written by the appellant terminating the respondents' contracts of employment, counsel for the respondents conceded that there could not be read therein any guarantee that the subsequent invitations for interviews was an assurance of re-engagement by the appellant.

ISSUE ARISING FOR DETERMINATION

The sole issue for determination is whether an employer's invitation to his former employee for an interview for the same post that the employee held during the subsistence of the fixed contract is conduct which the employee can act on to form a legitimate expectation of re-employment by the employer in terms of section 12B(3)(b) of the Labour Act [Chapter 28:01]. In other words, can an employee who was employed on a fixed-term contract basis successfully argue that after the fixed term contract of employment expired he legitimately expected to be re-employed because his former employer invited him for an interview to fill in the same position?

As stated earlier, the issue emanates, originally, from the arbitrator's finding that the employer flouted the provisions of section 12B(3)(b) of the Labour Act, which finding the Labour Court upheld.

THE LAW

In Magodora v Care International 2014 (1) ZLR 397 (S)…, PATEL JA pronounced an interpretation on section 12B(3)(b) of the Labour Act [Chapter 28:01]. He stated that the plain meaning of section 12B(3)(b) of the Labour Act is that an employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and was supplanted by another person who was engaged in his stead. He further stated, at 403A-C, that these requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.

In UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S) ZIYAMBI JA made the point that the onus is on the employee to prove the two requirements stipulated in section 12B(3)(b) of the Labour Act. The same reasoning is also found in the South African case of Ferrant v Key Delta (1993) 14 ILJ 464 (IC), where the court held that the onus of proving reasonable expectation rests on the employee. In another South African case, Fedlife Assurance Ltd v Wolfaardt (2001) 22 ILJ 2407 (SCA), the court found that to discharge that onus, the employee must prove that he or she actually expected the contract to be renewed and that only then would the question whether the expectation was reasonable arise.

PROFESSOR MADHUKU L, Labour Law in Zimbabwe, Weaver Press, 2015…, states:

“The test for legitimate expectation is objective: would a reasonable person expect re-engagement? This requires an assessment of all the circumstances of the case. To be 'legitimate', the expectation must arise from impressions created by the employer.”

In other words, in order for an employee to show that he or she reasonably expected that his or her fixed term employment contract would be renewed, he or she must convince the court that there was an objective basis for the creation of the “reasonable expectation”.

APPLICATION OF THE LAW TO THE FACTS

The question that arises is whether it is reasonable for an employee to expect to be re-employed solely on the basis that he or she was invited for an interview?

According to the Cambridge Advanced Learner's Dictionary, “reasonable” means based on or using good judgment, and, therefore, fair and practical. The Collins English Dictionary defines “reasonable” as using or showing reason, or sound judgment; sensible.

On the basis of these definitions of the word “reasonable” could it be said that the appellant, by extending the invitation for interviews to the respondents, gave them the impression that it would re-engage them and was this a practical or sensible basis upon which the respondents could legitimately expect to be re-engaged?

Clearly not.

An employer, anywhere, invites people for interviews but that is not a guarantee that the prospective employees will be engaged after the interviews.

In casu, it was accepted by the respondents, in their papers, that the appellant wanted to engage people in the communities that it would operate from as a matter of policy. On that basis, the respondents could not have expected to be re-engaged; moreso, if none of the respondents had shown that they lived in the said places. On the facts of this case, no basis has been shown for the respondents to have reasonably expected to be re-engaged.

Some of the contracts of employment were headed “Employment Contract for a Fixed Period.” Paragraph 2 thereof headed “Duration” provided:

“The contract is for a fixed duration, starting on the…, to….,. At the expiration of the period contracted for, this contract shall terminate automatically. The employer does not guarantee employment beyond this contract.”

Others were headed “Fixed Term Employment Contract.” Under the heading “Term of Contract” the provision reads”;

“The present contract is for fixed term duration, starting from…, and finishing on…,.”

That the contracts of employment were fixed term contracts can therefore not be open to any doubt on a plain reading of the provisions thereof.

A reading of the provisions of the contracts of employment in conjunction with the letters that were written to the respondents terminating their contracts exposes the fallacy of the respondents' claim to justification for entertaining a reasonable expectation of renewal. The letters read in relevant part:

“This letter serves to notify you that your contract of employment for a contract period of up to…, will not be renewed.”

The letters further stated:

“We would like to thank you for your services and dedicated time and to wish you luck in your endeavours. We will however consider you for interviews should any need arise within the organization in the future.”

None of the quoted provisions could be attributed with the capacity to have blinded the respondents to the nature of their employment with the appellant. Clear and unambiguous language stated the terms of the contracts of employment. Clear language used in the termination letters also laid beyond doubt that the clearly expressed employment contract had finally come to an end. An indication of possible consideration, should the need arise in the future, coupled with the indication that interviews would be conducted for the satisfaction of such future need does not create a reasonable expectation of renewal.

The relevant clause of the employment contracts stated in clear terms further employment or renewal was not guaranteed upon expiry.

In Magodora v Care International 2014 (1) ZLR 397 (S) and UZ-UCSF Collaborative Research Programme in Women's Health v Shamuyarira 2010 (1) ZLR 127 (S), the point is made that the terms of a contract are relevant in the determination of whether non-renewal of a fixed-term contract constitutes a dismissal. That is so because the contract itself indicates the intention of the parties. In the case of a fixed term contract, the intention of the parties is that the contract and employment relationship terminates on the date mentioned therein.

In addition, GROGAN J in Workplace Law, 11^th edition, Juta and Co (Pty) Ltd, 2014…, makes reference to Foster v Steward Inc (1997) ILJ 367 (LAC) where the South African Labour Appeal Court held that when establishing whether the non-renewal of a fixed term contract constitutes a dismissal, the terms of the contract remain relevant. The contract itself is an important indication that the parties in fact intended the contract relationship to terminate on the date mentioned. Reference is also made to the case of Swissport (Pty) Ltd v Smith NO (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract, that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.

In the case of South African Rugby Players Association & Ors v SA Rugby & Ors (2008) 29 ILJ 2218 (LAC), some professional rugby players alleged that failure by their employer to renew their contracts of employment on the same terms and conditions constituted constructive dismissal. Their contracts of employment included a provision which was captured as follows;

“3.2 As this is a fixed term contract, it shall automatically terminate on the date set out in paragraph 1.2 of schedule 11 hereof (30 November 2003) and the player acknowledges that he has no expectation that this contract will be renewed on the terms herein contained, or on any other terms.”

In interpreting the contract in the determination of the dispute that had arisen, the South African Labour Appeal Court held as follows;

“[46] Clause 3.2, stating that the contracts automatically terminated on the dates set out and that the players acknowledged that they had no expectation that their contracts would be renewed on the terms contained therein or any other terms is to me of critical importance. This clause, and other exclusionary clauses referred to above, were deliberately included in the contracts in order for them to be part of the contracts and to mean what they were intended for. It would, therefore, be expected of the appellants to place more credible facts to make their expectation reasonable in the face of clause 3.2. A mere ipse dixit that there is an expectation, based on flimsy grounds, would not suffice.”…,.

From the authorities cited above, it is clear that the employee's burden to prove that they had a legitimate expectation of re-engagement after the expiration of the contract of employment must be discharged. The employee has to show that, despite the contract of employment having been one for a fixed term, the employer acted in a manner upon which the employee could have formed a legitimate expectation to be re-engaged.

In casu, the contracts expressly provided that the employer did not guarantee employment beyond the duration of the fixed term. I agree with the appellant's counsel that there was thus no reasonable basis to justify the expectations by the respondents to be re-employed after termination.

In the South African case of Magubane & Ors v Amalgamated Beverages (1997) 18 ILJ 1112 (CCMA), the court held that whether there was a reasonable expectation of renewal must be determined from the perspective of both the employer and the employee. In light of the duration clause of the contracts of employment in casu, it is evident that from the perspective of the employer, no reasonable expectation of renewal could have been formed. Neither could the respondents have reasonably expected to be re-employed because the contract that they entered into with the appellant was clear that there was no guarantee of employment beyond the contract.

Counsel for the respondents failed to direct us to any evidence that the appellant acted in a way that could have resulted in the respondents forming a reasonable and legitimate expectation of re-engagement beyond the duration of their fixed term contracts. In the absence of evidence showing that the employer guaranteed an employee employment notwithstanding the former employee's performance in the interview, it cannot be said that by merely inviting employees for an interview the employer gave the employee reason to entertain a legitimate expectation for re-engagement.

As correctly argued by counsel for the appellant, an interview provides a platform for an employer to assess, among other things, the competence of a prospective employee. The employer has the discretion to engage an employee on the basis of his or her findings and satisfaction regarding the suitability of the interviewee as exposed by the interview. It is an interviewee's performance in the interview which forms the basis of whether one will be employed. In the absence of evidence that the employer guaranteed employment regardless of performance in the interview, there can be no justification for forming a legitimate expectation of re-engagement before the establishment of the employee's performance in the interview. An invitation to attend an interview cannot be reasonable basis upon which the employee forms a legitimate expectation for re-engagement. This is moreso considering that the employer conducts the interview, or, in this case, intended to conduct the interviews, in order to be satisfied that the interviewees suit the employer's requirements.

The arbitrator, and, consequently, the court a quo erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in casu had with the appellant clearly stated each was for a fixed term. By reason of the burden that the law places on them, the respondents had to place more evidence before the court to show that in light of all the circumstances pertaining to their matter, they reasonably expected to be re-engaged in the appellant's employ - which they failed to do.

In the result, it is ordered as follows;

1. The appeal be and is hereby allowed with costs.

2. The judgment of the Labour Court be and is hereby set aside in its entirety and substituted as follows:

“(i) The appeal against the arbitral award dated 8 May 2014 be and is hereby allowed.

(ii) The arbitral award be and is hereby set aside in its entirety.”

HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

This is an application for the setting aside of an arbitral award rendered by the second respondent in a contractual dispute between the applicants and the first respondent. The application is being made in terms of Article 34(2)(b)(ii) of the Schedule to the Arbitration Act [Chapter 7:15].

The application is opposed by the first respondent.

The first, third and fourth applicants are employees of the first respondent, a statutory body constituted in terms of the Zimbabwe Council for Higher Education Act [Chapter 25:27]. The now deceased, Professor Obert Ndawi, whose deceased estate is cited as the second applicant, was also an employee of the first respondent prior to his death.

The applicants were employed in terms of written contracts of fixed duration which terminated by effluxion of time at the end of December 2012 and January 2013 for that of the third applicant. The contracts were signed in 2008. After the termination of their employment contacts the applicants remained in employment on the same terms and conditions as the expired contracts. They were assured that their employment would be extended and that they would be made to sign new contracts of employment. A letter addressed to the first applicant, dated 9 January 2013, stated the following:

“Dear Mr Gurira

RENEWAL OF CONTRACT

It is with great pleasure that I write to inform you that your application for the renewal of your contract has been approved.

This is very good news for ZIMCHE, and we will do our best to ensure that the signing of the new contract is expedited.”

The letter was signed on behalf of the first respondent by Professor Emmanuel Ngara in his capacity as the Chief Executive Officer.

The other three applicants received the same letter.

By letter dated 29 April 2013 the first respondent advised the applicants that as a consequence of a directive addressed to the Ministry of Higher and Tertiary Education by the Ministry of State Enterprises and Parastatals the salaries of Principal Directors and Directors were to be reviewed as illustrated in the schedule attached to the letter addressed to the applicants.

The applicants were given up to 10 o'clock in the morning of the following day to choose one of two options presented to them.

(a) The first option was for a four-year employment contract based on amended packages with the effective date being 1 January 2013. An assurance was given that remuneration already received from 1 January 2013 to 30 April 2013 would not be deducted from the applicants' packages.

(b) The second option was a contract for a period of one year up to 31 December 2013 on the same terms and conditions which prevailed then. Upon termination of the contract the positions would be advertised and the applicants would be entitled to apply for them together with any other persons who might be interested in the same positions.

The applicants chose the first option which was for four-year contracts.

New contracts were signed by the applicants in June 2013. The contracts signed in June contained less favourable conditions than the expired ones. The applicants allege that they signed the new contracts under duress.

According to them, a Mrs Muguti, from the Ministry of Higher and Tertiary Education, had given information to the Chief Executive Officer of the first respondent to the effect that if the applicants did not sign the written contracts presented to them in June then they would be without employment the following Monday.

That statement, according to the applicants, was repeated by Mrs Muguti to the first respondent's Deputy Chief Executive Officer at Gwanda. The applicants stated that some of them “overhead” the conversation between Mrs Muguti and the first respondent's Deputy Chief Executive Officer. The applicants alleged that they attempted to resolve the issue of the contracts internally before they signed the contracts. They subsequently signed the agreements.

The arbitrator rejected the applicants' contention that they signed the contracts in June 2013 under duress.

That is the conclusion which the applicants contest on the basis that it is in conflict with the public policy of Zimbabwe.

In terms of Article 34(2) of the Schedule to the Arbitration Act:

“An arbitral award may be set aside by the High Court only if –

(a)…,.

(b) The High Court finds that –

(i)…,.

(ii) The award is in conflict with the public policy of Zimbabwe.”

Article 34(5) provides as follows:

“For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if –

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The public policy provisions referred to above must be interpreted restrictively consistent with the need for finality in arbitration proceedings; see Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; Beezley NO v Kabell & Anor 2003 (2) ZLR 198 (S); City of Harare v Harare Municipal Workers Union 2006 (1) ZLR 491 (H)…,.

This court is mindful of the fact that it is not sitting as an Appellate Court to consider the merits of the decision of the arbitrator. The mere fact that the decision of the arbitrator is incorrect in some respects does not, per se, justify the setting aside of the award in terms of Article 34.

The authorities have consistently held that it is only when “the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award” that this court would set aside the award on the grounds contained in Article 34.

See Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (S)…,.; Delta Operations (Pvt) Ltd v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S)…,.; Beezley NO v Kabell & Anor 2003 (2) ZLR 198 (S)…,.; Muchaka v Zhanje & Anor 2009 (2) ZLR 9 (H)…,.

Put in other words, the incorrectness must not only be serious; it must constitute an affront to our conception of justice and fairness....,.

Turning to the merits of the application, the arbitrator came to the conclusion that no duress had been established by the applicants to warrant the setting aside of the contracts which they signed in June 2013.

The arbitrator noted that the alleged threats were not communicated to the applicants by Mrs Muguti but by a third party, and, in another instance, some of the applicants stated that they had simply overheard a conversation between Mrs Muguti and some other person.

Also, the applicants unreservedly signed the contracts. They did not sign the contracts under protest because of the pressure which they alleged had been put to bear upon them.

The arbitrator noted, too, that the applicants were aware, as long ago as January 2013, that they would be required to sign new contracts. Even the option that they chose, on 29 April 2013, already contained terms and conditions which were less favourable than the earlier contracts which had terminated. They were therefore aware that the contracts that they would be signing in due course had terms and conditions different from their first contracts.

I do not believe that the above conclusions can be characterised as manifestly wrong to the extent of constituting a palpable inequity.

The contracts may have been prejudicial to the applicants but the arbitral award is not wrong in its conclusions on the facts and evidence presented. The applicants are not ordinary persons but highly educated professionals. The first applicant is a Principal Director, Human Resources and Administration. He would be the first person to appreciate the implication of signing a contract of employment without reservations. It does not follow that whenever a person is not happy about the terms of a contract which he or she is signing then the conclusion must be that the person is signing the contract under duress or undue influence.

If that approach was to be adopted then most contracts would be invalidated as they, in most cases, follow negotiations in which the parties do not always get everything that they would want to get out of the contracts.

Nothing is said about who Mrs Muguti is in relation to the contracts of the applicants such that they would not be able to inquire directly from her as to the situation surrounding their contracts.

There is also no explanation as to why the applicants did not approach the court on an urgent basis to protect their interests if they genuinely believed that they were being unduly pressured to sign unfair or oppressive contracts.

The issue of legitimate expectation does not arise as the applicants were notified, in January, that renewal of their employment contracts had been approved. They had no legitimate expectation to have their contracts renewed on the same terms as the expired one as they were told that they would be signing new contracts.

In fact, in April, they were even told, and they accepted, that those contracts would have less favourable terms in terms of remuneration than their first contracts.

The arbitrator adequately considered the principles of law applicable to cases of duress in the context of contracts, and came to the correct conclusion that the contracts signed by the applicants could not be impeached on the ground of duress.

Every other argument which the applicants raised depended upon a determination on the question of the validity of the contracts which they signed in June 2013. Once the arbitrator concluded that the contracts were validly signed the issue of whether the letter of 9 January 2013 constituted an offer became irrelevant.

For the above reasons, I find no ground for the award rendered by the second respondent to be set aside. The application must accordingly fail. No submissions were made as to why the costs should not follow the result.

In the result, IT IS ORDERED THAT:

1. The application be and is hereby dismissed.

2. The applicants shall pay the costs jointly and severally the one paying the others to be absolved.

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

This is an appeal against the whole judgment of the Labour Court upholding the National Employment Council - Tobacco Grievance and Disciplinary Committee's (NEC GDC Committee) finding that the appellant tacitly renewed the respondents' contracts of employment.FACTUAL BACKGROUNDThe following facts are common cause. The respondents were employed by the appellant ...

FACTUAL BACKGROUND

The following facts are common cause. The respondents were employed by the appellant on two-year fixed contracts beginning 1 May 2011 to 30 April 2013.

After the expiry of their contracts of employment, they continued to work for the appellant for eleven months following which the appellant offered them new contracts with the same terms as the expired ones.

The respondents signed the new contract which effectively regularised their employment in retrospect for the period of 1 May 2013 to 30 April 2015.

Upon expiry of the contracts, on 30 April 2015, the appellant retained the respondents until 22 June 2015 on the same terms as the expired contracts. It then offered them one-year fixed term contracts. The proposed contracts had a two-months probation clause and other less favourable conditions.

The respondents rejected the appellant's offer.

The appellant terminated their contracts of employment by letter dated 7 July 2015 on the basis that the negotiations between the parties had collapsed.

Aggrieved by the termination of their employment, the respondents noted a grievance of unfair dismissal with the appellant's Works Council.

The Works Council upheld the decision by the appellant's Human Resources department to offer the appellants one year contracts after the expiry of the two year contracts. It reasoned that there was no legal impediment to the appellant replacing the expired two-year contracts with other contracts which had different terms and conditions from the expired contracts.

The Work's Council further found that the respondents suffered no prejudice as they were paid for the period they worked whilst the parties were negotiating.

Thereafter, the respondents appealed to the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC).

They submitted, that, in instances where an employer allows an employee to work after a fixed-term contract had expired, the contract is deemed to have been tacitly relocated on the same terms and conditions. Therefore, they submitted, there was no basis for the new contracts as there had been tacit renewal. They also averred, that, the alleged negotiations were inconsequential as they ensued after the tacit renewal.

In response, the appellant submitted, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) had no power to interfere with the findings of facts made by the lower tribunal unless the findings were outrageous in their defiance of logic. The appellant contended that the two-month delay in notifying the respondents of the new offer could not be inferred to mean there was tacit renewal.

It did not intend to renew the two year contracts.

The National Employment Council - Tobacco Grievance and Disciplinary Committee ruled in favour of the respondents.

It held, that, tacit relocation could be safely presumed since the appellant did not communicate its intention to change the terms of the respondents' contracts before their termination and that the respondents were engaged on the same terms and conditions as before. It accordingly ordered the reinstatement of the respondents for the unexpired period of their contracts without loss of pay and benefits or payment of their salaries and benefits up to 30 April 2017.

Aggrieved by this decision, the appellant appealed to the Labour Court (the court a quo) on the ground, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) grossly misdirected itself when it made a finding that there was a tacit renewal of the respondents' two year employment contracts simply because the appellant allowed the respondents to continue reporting for duty after the expiry of their contracts.

It argued, that, where there are clear indications that the other party did not intend to be bound by the old contract, there could not be tacit relocation of a contract that extended beyond the contractual period.

The appellant submitted, that, tacit relocation could not occur where the parties are engaged in negotiations over a new agreement. It contended that the respondents were allowed to work and were paid for the period when their new contracts were being attended to.

To the contrary, the respondents argued that there was tacit relocation in that the appellant allowed them to continue working on the same conditions from 1 May 2015 to 22 June 2015 notwithstanding that their contracts expired on 30 April 2015.

They also emphasized that the parties did not agree on a new arrangement.

The respondents further indicated that the appellant had the option of terminating their contracts of employment but allowed them to render their services and subsequently introduced unfavourable conditions. It was submitted that a finding against tacit relocation in the circumstances of the case would be contrary to social justice and fair labour standards of equity and fairness in the workplace.

DETERMINATION OF THE COURT A QUO

The court dealt with the issue of whether or not the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC) erred in finding that the contracts of employment had been tacitly relocated.

In doing so, it considered the employment status of the respondents at the time their contracts were terminated. The court a quo found that there was no evidence to the effect that the new contracts were as a result of any negotiation process as no negotiations were done from 1 May to 22 June 2015.

It reasoned, that, the old contracts were tacitly relocated in that the appellant had allowed the respondents to continue working on the same terms and conditions as before, and did not communicate any intention to change the terms and conditions of the employment.

The court a quo also had regard to the precedent that the appellant did not immediately terminate or renew the respondent's contracts but allowed them to continue working, for some period, on the same terms and conditions of the expired contracts.

It reasoned, that, had the appellant not wished to be bound by the old expired contracts, it would have expressed that intention.

The court accordingly concluded, that, the National Employment Council - Tobacco Grievance and Disciplinary Committee's decision did not constitute an outrageous defiance of logic since the facts indicated that there was tacit relocation of the two year contracts.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. Having accepted that the fixed term contracts between appellant and each of the various respondents had come to an end and that new fixed term contracts have been offered, within two months of the expiry of respondent's contracts, the court a quo erred in finding notwithstanding those agreed facts, that the old contracts had been relocated.

2. The court a quo erred in not coming to the conclusion that the negotiation that took place after the expiry of the contracts were such as negated any finding that there was an extension of the contractual relationship between the parties by the quasi-mutual assent.

3. The court a quo erred in imposing upon appellant a contract it had not concluded to prejudice the clear terms it had actually offered. (sic)

4. Respondents, having rejected the terms of the contract offered by appellant, the court a quo erred in concluding that respondents had a contract to enforce.”

SUBMISSIONS BEFORE THIS COURT

At the hearing, counsel for the appellant submitted that the court a quo asked itself the wrong question, and, ultimately, gave itself the wrong answer.

The wrong question was whether it had been shown that there had been negotiations between the parties from 1 May 2015 to 22 June 2015, and, if not, what the effect of the absence of negotiations, during that period, would be.

The court a quo's ratio was that, upon the expiry of the contract, they only engaged in negotiations after a period of six weeks: because of that silence, there was tacit relocation of the contract.

He contended, that, the real dispute between the parties was not that the respondents' contracts had been relocated but that the respondents were aggrieved by the terms of the new contracts.

Counsel for the appellant submitted, that, the respondents admitted that there were negotiations and that they did not refuse to sign the one-year contracts but were looking forward to working under the old two-year contracts.

Counsel for the appellant further contended, that, a holistic analysis of the facts would show that relocation of contracts in 2015 could not have been the appellant's intention.

The parties knew of the need for a written contract at all material times as evidenced by the fact that in 2013 the respondents worked for eleven months without contracts and later signed contracts backdated to the period when they were without contracts.

The parties haggled over the terms of the one year contracts as the employees did not like the new terms of the contract. They did not argue that the old contracts had relocated.

To confirm the appellant's position some of the employees signed the one-year contracts.

He concluded by saying that tacit relocation cannot be inferred from the facts of this matter.

On being asked the date when the negotiations started, he was unable to pinpoint a date.

He however submitted that even if there were no negotiations between 1 May and 20 June 2015 a tacit relocation could not be inferred when the parties subsequently negotiated.

He further submitted, that, the fact that the parties were negotiating shows that there was no intention on the part of the appellant to revert to the old contract. He relied for that proposition on the case of Justin Kwangwari v Commercial Bank of Zimbabwe HH79-03.

He submitted, that, there is no period set in our law between the expiry of a fixed term contract and the conclusion of a new one for it to be held that there was tacit relocation. He urged the court to consider all the facts holistically in order to draw inferences consistent with the proven facts.

On being asked what would be the status of the employees in the seven (7) weeks, before the offer, he submitted that the status was determined by the new contract.

Counsel for the respondents submitted, that, the facts of the matter point to tacit relocation.

He indicated that the root of the dispute lies in the determination of the respondents' employment status in the seven (7) week period.

Accordingly, he referred to section 12(1) of the Labour Act [Chapter 28:01] (the Act) for the proposition that the legislature envisaged the existence of 'deemed contracts' in respect of an employee who works for an employer and is receiving or entitled to receive any remuneration notwithstanding that such contract has not been reduced to writing.

He also referred to section 12(2) of the Labour Act, which, so he argues, demands mandatory compliance by the employer to inform the employee, in writing, the period in terms of which they are engaged and section 12(3)(a) of the Labour Act which provides that where a contract does not specify its duration or date of termination, it is deemed to be one without a limit of time.

As such, he argued, the legislature sought to protect employees from unscrupulous employers who have more bargaining power than the employees.

He emphasized, that, there was tacit relocation in that the respondents reported for work and were remunerated under the old contracts.

He further indicated that the respondents' concerns did not only relate to their disgruntlement with the new offer but also spoke to the issue of tacit relocation.

He further submitted, that, the appellant's offer of new contracts of employment was immaterial to the concept of tacit relocation.

Additionally, he stated that the one-year contracts offered by the appellant were unjust, unfair, and violated the respondents' right to fair and safe labour practices and standards provided for in section 65 of the Constitution of Zimbabwe, 2013.

In rebuttal, counsel for the appellant submitted that there can be a delay after the expiry of the contract and the delay does not amount to relocation.

It would be wrong to say once there is a delay then section 12 of the Labour Act is the answer.

He submitted that section 12 uses “shall” in a directory sense and not in a peremptory manner. Failure to comply with it does not render conduct void.

He concluded by saying that section 12 of the Labour Act is what the employer was complying with in the seven (7) weeks.

ISSUE FOR DETERMINATION

From a consideration of the grounds of appeal raised and the submissions made, one issue falls for determination which is:

Whether or not the court a quo erred in finding that the contracts of employment in question had been tacitly relocated.

A reading of the record reflects that the ratio of the court a quo's ruling was that the respondents' continued rendering of services from 1 May 2015 to 22 June 2015 in terms of the expired contracts constituted tacit relocation of the contracts by the appellant.

That tacit relocation was at the centre of the parties' dispute is also evidenced in the way the matter progressed before the various fora. This will be shown by a perusal of the minutes of the appeal hearing of 26 October 2015 before the Work's Council to the respondents' appeal before the National Employment Council - Tobacco Grievance and Disciplinary Committee (NEC GDC Committee) and the subsequent proceedings in the court a quo.

THE LAW

It is settled law that a fixed-term contract of employment automatically expires at the end of the specified period unless the parties thereto mutually agree to its termination: see ZIMRA v Mudzimuwaona SC04-18.

However, in certain instances, despite the expiry of the period of employment, the employer-employee relationship may be found to exist owing to the parties' conduct under the concept of tacit relocation.

Tacit relocation, as it applies to contracts of employment, entails that where an employee's fixed term contract expires without renewal and the employee continues to render his services to the employer with the employer paying the previously agreed remuneration, the expired contract is deemed to be relocated. Therefore, the employee is deemed to be employed on the same terms and conditions as the previous contract.

In Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126…, the court made the following pertinent remarks regarding the principle of tacit relocation;

“Finally, the best that can be said for the applicant is that in certain cases, akin to the present, there is a presumption that when the parties continue the employer-employee relationship beyond the contractual period, without agreeing new terms, there is a tacit relocation of the expired contract on the same terms and for the same duration.

In other words, all things being equal, it could be said that on 1 October 1999, the applicant commenced a new probationary period.

However, this presumption does not operate when it is clear that one of the parties has no intention of continuing on the terms of the expired contract: see Lilford v Black 1943 SR 46 at 47, where BLAKEWAY J said:

'The renewal of a lease or of a contract for services to be performed can take place either by express agreement or tacitly. If, after the expiration of the period provided for the duration of the contract, the parties continue their relationship without any fresh agreement the law presumes, in the absence of indications to the contrary, that they have agreed to enter upon a new lease on the same terms as the expired lease. But, this presumption does not operate when it is clear that the parties, or one of them, does not intend to carry on with the contract on the old terms.'” …,.

JOHN GROGAN in his book “Workplace Law” 8th ed…, states the following:

“If, after the agreed date for the termination of the contract, the employee remains in service and the employer continues to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that an intention to renew is consistent with the parties' conduct. The relocated contract will continue on exactly the same terms and conditions as the previous fixed-term contract, except that the duration of the contract need not be the same as that of the original contract; the life of the relocated contract must be determined in light of the particular circumstances of each case.”…,.

In Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC & Ors 2002 (1) SA 822 (SCA)…, the court held:

“After the termination of the initial agreement, and prior to this letter, the parties (in the light of the facts recited) conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.

Taken together, those facts establish a tacit relocation of a franchise agreement (comparable to a tacit relocation of a lease) between the appellant and Sirad (Shell South Africa (Pty) Ltd v Bezuidenhout and Others 1978 (3) SA 981 (N) 984B-E).

A tacit relocation of an agreement is a new agreement and not a continuation of the old agreement (Fiat SA v Kolbe Motors 1975 (2) SA 129 (O) 139D-E; Shell 985B-C).

The fact that the appellant had forgotten that the agreement had lapsed is beside the point because in determining whether a tacit contract was concluded a court has regard to the external manifestations and not the subjective workings of minds (Fiat SA 138H-139D).”…,.

The principle that can be drawn from the cited authorities is that an inference of tacit relocation is dependent upon the continued existence of an employer-employee relationship after the expiration of the contract. The employee will continue rendering his services to the employer who, in turn, pays remuneration in terms of the expired contract.

Tacit relocation is based on the intention of the parties which must be consistent with their conduct. The court, in determining such an issue, considers all the facts holistically as it draws inferences which are consistent with the proved facts.

The principle of tacit relocation of contracts of employment appears to be embodied in statute, in particular section 12 of the Labour Court Act [Chapter 28:01] which provides:

“12 Duration, particulars and termination of employment contract

(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.

(2) An employer shall, upon engagement of an employee, inform the employee, in writing, of the following particulars —

(a) The name and address of the employer;

(b) The period of time, if limited, for which the employee is engaged;

(c) The terms of probation, if any;

(d) The terms of any employment code;

(e) Particulars of the employee's remuneration, its manner of calculation, and the intervals at which it will be paid;

(f) Particulars of the benefits receivable in the event of sickness or pregnancy;

(g) Hours of work;

(h) Particulars of any bonus or incentive production scheme;

(i) Particulars of vacation leave and vacation pay;

(j) Particulars of any other benefits provided under the contract of employment.

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

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.

(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is —

(a) Fixed by the appropriate employment council; or

(b) Prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who are engaged without limit of time.”

Section 12(2) of the Labour Act has been interpreted to merely impose an obligation on the employer to supply the information and does not require the parties to sign a written contract: see Rumbles v Kwa Bat Marketing (Pty) Ltd (2003) 8 BLLR 811 LC.

The statement of particulars is not the contract itself nor is it even conclusive evidence of the contract: see L. MADHUKU, Labour Law in Zimbabwe, 2015…,.

However, a proper construction of section 12(1) of the Labour Act yields the result, that, where an employee renders services in return for remuneration, a contract of employment exists notwithstanding that such a contract has not been reduced to writing.

Tacit relocation is therefore presumed.

This is made clearer by the provisions of section 12(3a) of the Labour Act which states, that, a fixed term contract shall be deemed to be a contract without limit of time upon the expiry of such period of continuous service.

APPLICATION OF THE LAW TO THE FACTS

A determination of whether a written contract was automatically renewed in accordance with the principle of tacit relocation is a question of fact which has to be answered after an analysis of the particular facts and circumstances of each case: see Sun International (South Africa) Ltd v Crocodile Enterprises [2014] ZANWHC 52.

In casu, it is not in dispute that the parties' relationship was governed by a written contract of employment which terminated by effluxion of time on 30 April 2015. As at that date, the respondents would have ceased to be the appellant's employees.

However, the appellant allowed the respondents to continue working on the old terms and conditions of their contracts until 22 June 2015 when it then offered the respondents one-year contracts with less favourable conditions.

It can be reasonably inferred from this conduct of the parties that a new contract had come into existence by the principle of tacit relocation.

Applying the dicta in Golden Fried Chicken (Pty) Ltd v Sirad Fast Foods CC & Ors 2002 (1) SA 822 (SCA)…, that, tacit relocation of an agreement is a new agreement and not a continuation of the old agreement, it follows, that, a new agreement between the parties came into effect on 1 May 2015 owing to the appellant's conduct of retaining the respondents in its employ on the same terms and conditions of the expired contracts.

Such a finding would have resolved the matter; however, a secondary issue arises from the parties' submissions.

The issue for consideration is the effect of the alleged negotiations, if any, on the relocated contract.

This is necessitated by the appellant's position that the existence of negotiations regarding a new contract negates any finding to the effect that the old contracts were relocated. It is the appellant's position that the engagements between the parties, after the expiration of the contract, are a clear indication that it had no intention of continuing on the old terms.

It relied on communication by the appellant's Human Resources Manager, dated 7 July 2015, informing the respondents that the negotiations had collapsed, thus, a new contract would not materialize and the Works Council determination to that effect.

Per contra, the respondents aver, that, negotiations regarding the new offer made by the appellant did not have any legal effect on tacit relocation as a new contract had already materialised.

In their written submissions, they aver that the purported negotiations were induced by duress as the appellant's Human Resources' Manager threatened to dismiss them if they did not abandon the claim for tacit relocation and dispense with the services of their legal practitioners.

As such, they submitted that the 'alleged collapse of negotiations' in the circumstances, could not be a basis for the termination of employment.

Since tacit relocation is inferred from the presumed intention of the parties to the contract and their conduct, where it is established that both parties accepted that the old contract had terminated and engaged in negotiations regarding a new contract, tacit relocation will be negated.

This is for the reason that neither of the parties would have conducted themselves in a manner that gave rise to the inescapable inference that both desired the revival of their former contractual relationship on the same terms as existed before.

In this regard, the court a quo made a factual finding that there was no evidence to the effect that there were any negotiations between the parties from 1 May 2015.

It further found, that, although the appellant may have intended to terminate the contracts, it failed to communicate that intention.

It also took into account the manner in which the parties dealt with the same issue in the past.

When the initial two year contracts expired the employer did not immediately renew the contracts. It merely allowed the employees to continue rendering services on the same terms and conditions of the expired contracts.

It only regularised the contracts after eleven (11) months.

It is settled law that an Appellate Court may only interfere with the decision reached by a lower court based on factual findings where gross misdirection has been established: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

The appellant has not alleged such a gross misdirection which necessitates this court's interference.

More importantly, there is nothing on record to show that the parties engaged in negotiations during the period 1 May 2015 to 22 June 2015 when they were without contracts.

There is no evidence, that, during this period, the appellant communicated to the respondents its intention as to whether or not the two-year contracts would be renewed or terminated.

The first meeting on record occurred in the appellant's board room on 29 June 2015, notably after the period upon which the respondents base their claim for tacit relocation. This is followed by the appellant's letter of 7 July 2015 indicating the collapse of the alleged negotiations.

Given this, the court a quo's finding cannot be assailed.

Its decision was based on a correct application of the principle of tacit relocation as enunciated in Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126.

The fact of the matter is, that, for the two month period, that is 1 May 2015 to 22 June 2015, the conduct of the parties reflects that they intended to be bound by the expired contracts.

Those contracts were therefore tacitly relocated and were to expire after two years - just like the expired contracts.

In the circumstances of this case, a mere attempt to negotiate a new contract does not operate to vary an existing binding contract. The appellant's new offer thus amounted to an attempt to unilaterally vary the respondents' relocated contracts.

This is a classical case of the application of subsections 12(1) and (3a) of the Labour Act [Chapter 28:01] which seek to protect employees by estopping an employer from alleging the non-existence of a contract of employment where there has been continued service in terms of an expired contract.

Counsel for the appellant argued that it would be wrong to invoke section 12 of the Labour Act everytime there is a delay in re-negotiating an expired contract. He contended that section 12 of the Labour Act uses “shall” in a directory sense and not in peremptory terms.

It is the generally accepted rule of interpretation that the use of the word “shall” as opposed to “may” is indicative of a peremptory intent on the part of the legislature.

Failure to comply with the mandatory dictates of law renders the act done a nullity.

However, where the legislature has not explicitly provided that non-compliance is fatal, there is a presumption that the legislature left it to the courts to determine the consequences of non-compliance.

In Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC11-08…, the court had occasion to deal with the issue of interpreting a statute that does not prescribe the consequences of non-compliance with a statutory provision.

In interpreting the provisions of the Zimbabwe Electoral Commission Act, CHIDYAUSIKU CJ remarked as follows…,:

"It is the generally accepted rule of interpretation that the use of peremptory words such as 'shall' as opposed to 'may' is indicative of the legislature's intention to make the provision peremptory.

The use of the word 'may' as opposed to 'shall' is construed as indicative of the legislature's intention to make a provision directory.

In some instances, the legislature explicitly provides that failure to comply with a statutory provision is fatal. In other instances, the legislature specifically provides that failure to comply is not fatal.

In both of the above instances, no difficulty arises.

The difficulty usually arises where the legislature has made no specific indication as to whether failure to comply is fatal or not.

In the present case, the consequences of failure to comply with the provisions of section 18 of the Zimbabwe Electoral Commission Act are not explicitly spelt out.

In those statutory provisions where the legislature has not specifically provided for the consequences of failure to comply, it has to be assumed that the legislature has left it to the Courts to determine what the consequences of failure to comply should be.

The learned author FRANCIS BENNION in his work Statutory Interpretation suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty.'

In Sutter v Scheepers 1932 AD 165 at pp.173, 174 the court gave guidelines on how the real intention of legislature can be arrived at. These were summarised in Pio v Franklin NO and Another 1949 (3) SA 442 (C) as follows:

'(1) The word 'shall' when used in a statute is rather to be considered as peremptory, unless there are other circumstances which negative this construction.

(2) If a provision is couched in a negative form, it is to be regarded as a peremptory rather than a directory mandate.

(3) If a provision is couched in positive language and there is no sanction added in case the requisites are not carried out, then the presumption is in favour of an intention to make the provision only directory.

(4) If when we consider the scope and objects of a provision, we find that its terms would, if strictly carried out, lead to injustice and even fraud, and if there is no explicit statement that the act is to be void if the conditions are not complied with, or if no sanction is added, then the presumption is rather in favour of the provision being directory.

(5) The history of the legislation also will afford a clue in some cases.'”

The principle which comes out of the guidelines is that where strict adherence to the wording of a statute leads to an injustice, or even fraud, in instances where no penalty is prescribed, it may be desirable to lean in favour of making the provision directory.

From the cited authorities, it is the general position that the use of the word 'shall' in a statutory provision requires mandatory compliance.

Where the penalty for infraction of the provision is not explicitly stated, it is for the courts to determine what the consequences of failure to comply should be. In doing so, the court must interrogate the purpose of the relevant statute and pronounce a penalty which is proportionate to the mischief the legislature sought to remedy.

It is my considered view that both provisions are peremptory owing to the specific use of the word “shall” which has mandatory connotations.

Section 12(1) of the Labour Act [Chapter 28:01] provides:

“12 Duration, particulars and termination of employment contract

(1) Every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not.”

It is accepted that there is no explicit obligation on an employer, under this provision, to reduce a contract into writing. However, that fact alone does not render the provision directory.

The use of the word “shall” after a description of a factual set of facts in an employment set up, followed by the pronouncement of a specific outcome, is indicative of the fact that the legislature intended the provision to be peremptory.

In enacting section 12(1) of the Labour Act, it appears that the legislature envisaged a situation where services are rendered in return for remuneration but the recipient of the services later disputes the existence of a contract of employment.

The peremptory nature of section 12(1) of the Labour Act is not dependent on whether or not a particular act is done, which, in this case, would be a mandate on the employer to reduce a contract into writing. The peremptory nature of the provision lies in the deemed existence of a contract of employment which follows the rendering of services and remuneration for such services.

Once it is established that services have been rendered, and there is a correlative entitlement to remuneration or actual remuneration, a contract is deemed to be in existence.

It is prima facie proof of employment.

A similar interpretation can be ascribed to section 12(3) of the Labour Act. The peremptory nature of the provision stems from the fact that a contract is deemed to be without limit of time where no specific details of its duration are provided.

The same applies to a casual worker who continues rendering services notwithstanding the expiry of the specific period for which he was engaged.

Therefore, the onus to disprove the continued existence of the contract rests on the party disputing its existence.

It is my considered view, that, the legislature must have been cognisant of the fact that employees are vulnerable under some unscrupulous employers, hence the use of such peremptory provisions in section 12 of the Labour Act.

Having said the above, the circumstances of this case fall into the ambit of the sentiments of the court in Melamed and Hurwitz v Vorner Investments (Pty) Ltd 1984 (3) SA 155 (A) at 165B-C, that:

“…, a court may hold that a tacit contract has been established where, by a process of inference, it concludes that the most plausible probable conclusion from all the relevant proved facts and circumstances is that a contract came into existence…,.”

Applying this approach to the matter at hand, an inference of tacit relocation was justified on the facts of this case.

The court a quo's finding, that, the respondents' contracts were tacitly renewed from 1 May 2015, is unassailable. Therefore, the appellant's termination of the respondent's contracts of employment in the circumstances was grossly irregular.

An employer clearly cannot terminate a contract that has expired - even though it has been tacitly renewed.

The appeal therefore lacks merit and ought to be dismissed. Costs will follow the cause.

It is accordingly ordered as follows:

“The appeal is dismissed with costs.”

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course.

The following are the reasons for the order.

The facts arising in this matter are that, in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:

“Upon successful completion of the probation period, the employment contract shall run for a further period of 24 (twenty-four) months after which the authority may, at its sole discretion, offer you permanent employment on such terms and conditions as determined by it at the time.”

The literal meaning of that clause is that the respondent's contract was subject, first, to the successful completion of the probation period and then would terminate at the end of the 36 month.

In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment.

He was arraigned before a Disciplinary Committee and was found guilty of both charges. He was, as a consequence, dismissed from employment.

He appealed to the Appeals Committee without success.

The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court a quo ordered the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer tenable, to pay damages in lieu of reinstatement.

This decision was not appealed against.

Instead, the parties decided to negotiate the quantum of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification.

He claimed, that, when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee.

The appellant opposed the quantification on the basis that the respondent was employed on a fixed-term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract.

The Labour Court ruled in favour of the respondent and ordered the appellant to pay:

(a) US$19,740=16 as back-pay and benefits.

(b) Twelve (12) months' salary that the respondent would have earned in August 2011 minus US$150 earned by the respondent per month for a period of twelve months.

The appellant was aggrieved by the decision, and, with the leave of this court has appealed the order of the court a quo.

It is criticized for the following reasons:

(i) Failing to put due weight to the fact that the respondent was employed as a Revenue Trainee on a fixed term contract of 36 (thirty six) months.

(ii) Failing to give proper weight to the fact, that, when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.

(iii) Failing to give proper weight to Clause 1.3 of the Zimbabwe Revenue Authority offer of employment which provides that permanent employment could only be offered at the sole discretion of the appellant.

(iv) Failing to give proper weight to the submission, that, even if the respondent had not been dismissed, he would not have been offered permanent employment as he had failed two (2) core courses in November 2004 and supplementary exams in 2005.

(v) Failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.

(vi) In finding that the respondent's entitlement to damages accrued up to the date of the court's judgment.

(vii) In failing to deduct the US$150 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.

(viii) In failing to appreciate that the respondent could have easily obtained alternative employment within a period of six (6) months.

(ix) In rejecting the evidence of the appellant's expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds....,.

On the merits, the issues which are pertinent in the determination of the appeal are the following:

(a) Whether or not the court a quo correctly applied the principles on fixed term contracts;

(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;

(c) Whether or not the court drew a distinction between a permanent employee and one on a fixed term contract in its quantification of damages; and

(d) Whether or not the court grossly misdirected itself in respect of the factual findings it arrived at on the evidence presented.

It was the appellant's contention, that, the court a quo erred in law by quantifying damages as if the respondent was a permanent employee prior to his dismissal, yet it is clear from the contract of employment that he was on a fixed term contract.

One of the first categoric statements on the assessment of damages for unlawful dismissal was enunciated by GUBBAY CJ in Gauntlet Security Services v Leonard 1997 (1) ZLR 583 (S) in which he said:

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his Contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach.”

The remarks by the learned judge show that, in assessing damages for unlawful termination of an employment contract, the court has to place the employee in the position he would have been save for the premature termination of the contract.

This is in line with the object of damages which is to place a party in the position he or she would have been save for the premature termination of the contract.

This position was aptly captured in Goedhals v Graaff-Reinet Municipality 1955 (3) SA 482 in which HALL J..., said;

“The general principle upon which damages are to be assessed was laid in Victoria Falls and Transvaal and Power Co. Ltd v Consolidated Langlaate Mines Ltd 1915 AD at p22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle, it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case.”

What is derived therein is that damages are awarded for what can be termed as expectation loss.

There was no dispute between the parties regarding the nature of the respondent's contract of employment with the appellant. Thus, his status was never in issue. His was a fixed term contract. Further, it was not in dispute, that, when he was dismissed his contract only had six months before it was due to expire.

Counsel for the respondent conceded, properly in my view, that a distinction had to be drawn between reinstatement to a contract without limit of time and one that was of fixed duration.

He, however, detracted from this concession by submitting that there should be no distinction between the two when considering consequential damages arising out of an unlawful termination of a contract of employment.

In casu, the contract of employment signed by the parties, as outlined above, was for a duration of 36 months - which point was conceded by the respondent. This means, that, the relationship between the parties was expected to expire on the last day of the 36th month.

The appellant submitted, that, based on the principles of law, that one is compensated for the loss he suffered as a result of the breach, the respondent was entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of the contract.

This is the correct position.

Damages for unlawful termination, in relation to an employee who was on a fixed term contract, ought to be calculated in relation to the unexpired period of that contract.

This position is fortified in Myers v Abramson 1952 (3) SA 121 (C) in which, in relation to damages for breach of a fixed term contract of employment, the court stated the following:

“The measure of damages accorded such employee is, both in our law and in the English law, the actual loss suffered by him represented by the sum due to him for the unexpired period of the contract less any sum he earned or could reasonably have earned during such latter period in similar employment.' (at 127D-E).”

The standard in Myers v Abramson 1952 (3) SA 121 (C) intimates, that, an employee will be entitled to his proven actual damages, which is the loss of income for the unexpired period.

The court a quo awarded the respondent damages in lieu of reinstatement for a period of 12 months yet the remaining period was six months.

The court a quo failed to take cognisance of the fact that damages in lieu of reinstatement, are, in fact, a substitute of reinstatement.

The question that ought to have exercised its mind is; if the respondent were to be reinstated, what would be the period of his engagement in terms of the contract?

The answer is obviously six months because it is clearly stated in the contract that it was for the duration of 36 months.

The court also accepted the appellant's reasoning that the court a quo, in making the order it made, actually created a new contract for the parties.

That was a violation of the principle of sanctity of contracts.

In Book v Davidson 1988 (1) ZLR 365 (S), the sanctity of contracts was discussed as follows:

“There is, however, another tenet of public policy, more venerable than any thus engrafted onto it under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the sanctity of contracts…,.

If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice.

Therefore, you have this paramount public policy to consider - that you are not lightly to interfere with this freedom of contract…, to allow a person of mature age, and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it and the obligations which he has undertaken is, prima facie at all events, contrary to the interests of any and every country.”

The above dictum shows, that, the principle of sanctity of contracts confines the court only to interpreting a contract and not creating a new contract for the parties. It entails that the court should respect the contract made by the parties and give effect to it.

The dispute between the parties does not, and cannot, extend beyond the life span of the contract.

Clearly, the court a quo misdirected itself in extending the dispute beyond the life of the contract.

If a contract is for a fixed term, it automatically expires at the end of the specified period - unless the parties thereto mutually agree to its termination. So too do any obligations entered into for performance by the parties to the contract.

By accepting that the dispute of the parties did not extend beyond the life of the contract, counsel for the respondent was in effect conceding that there was no place for a claim for consequential damages.

Such claim could only properly arise if there was a legitimate expectation that the respondent would be offered permanent employment - which was never the contention.

What is at issue is the computation of damages for the un-expired period of the contract.

In terms of clause 3.1 of the contract, the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position.

When the respondent was dismissed, the appellant had not exercised that discretion.

As a consequence, the court a quo ought to have given effect to that clause.

Its failure to do so meant that it was extending the period of the contract on its own volition contrary to the wishes of the parties as expressed in the contract.

It was therefore a serious misdirection on its part to award damages for a period beyond the date of termination as stipulated in the contract.

The court a quo completely ignored the agreement that had been entered into between the parties which stipulated the duration of the relationship between the parties.

It should also be noted, that, in the absence of a finding that the respondent had a legitimate expectation that he would be given a permanent contract, there was no justification for the method it used to quantify damages.

The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 - and failed. He would only be competent to be employed on a permanent basis after successfully completing the training.

Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:

“A Revenue Trainee who fails to successfully complete level 2, and has a negative mentor's report, will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases, or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject.”

He did not deny that he had re-written the required examinations and that he had failed a second time.

His explanation, upon being shown the examination scripts, was that he had forgotten having written the said examinations.

Against these clear admissions, it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them.

From what is stipulated in the policy, it is clear that the respondent's employment would have been terminated at the end of the 36 months because he had failed the examinations.

There was no basis upon which the respondent could have, at law, been entitled to more than what he would have earned during the unexpired period of his contract with the appellant and thus there was no legal basis upon which the court a quo made the order it did.

It is for the above reasons that we allowed the appeal and made the following order:

1. The appeal be and is hereby allowed with costs.

2. The order of the Labour Court is set aside and the following is substituted:

(a) The appellant shall pay the respondent the amount of US$1,470 as back-pay and benefits less US$900 earned by the respondent from informal jobs over a period of six months.

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

On 26 January 2017, this Court, in SC01-17, adjudicating over the parties' dispute, remitted the matter to the Labour Court (the court a quo) for a determination of the following issues:

“To determine, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the agreement, whether or not the salaries and benefits stipulated in that agreement were intended to apply to the appellants.”

After considering the parties' submissions, and evidence led, the court a quo dismissed the appellants' claim against the respondent. The court a quo held that the appellants failed to discharge the onus on them of proving that they were covered by the Works Council Agreement upon which their claim of salaries and benefits was founded.

This is an appeal against that judgment.

FACTUAL BACKGROUND

The appellants are 153 former employees of the respondent who were employed as security guards on fixed-term contracts renewable every three months.

The period of employment ranged from 2007 and 2008 up until January and April 2011 when their contracts expired by effluxion of time and were not renewed.

In July 2010, the respondent, 1,078 of its employees, and its workers' committee approached an arbitrator (Nasho) in a bid to negotiate the regularisation of the employees' contracts in line with the new multi-currency regime and to ascertain the salary arrears due to the respondent's employees.

Arbitrator Nasho ordered the payment of back-pay from 1 March 2009 to the date of the award, in line with the multi-currency system.

In accordance with that award, the parties concluded a Works Council Agreement, on 15 September 2010, which set the back pay due to all employees of the respondent and the salary structure for non-managerial employees from 1 January 2010 onwards. It was agreed that all employees across the board, for the period of 1 March 2009 to 31 December 2009, were to be paid a net salary of $500 per month.

Following this agreement, and in a different matter, the appellants challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

A second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012. On appeal, the arbitral award was upheld by the Labour Court.

On 10 December 2012, following the dismissal of their claim by arbitrator Mugumisi, and as confirmed by the Labour Court, the appellants filed another claim for the payment of arrear salaries and benefits which was dealt with by the third arbitrator (Mambara) who awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimants' contract of employment was terminated.

Dissatisfied by that decision, the respondent applied to the Labour Court for a review of the award. The Labour Court upheld the review on 12 September 2014 and dismissed the appellants' claim.

Irked by that decision, the appellants appealed to this Court which remitted the matter to the court a quo for a comprehensive analysis of whether the appellants were covered by the 2010 Works Council Agreement.

In making that order, the court noted that although both the arbitrator and the Labour Court, in its review proceedings, referred to the minutes and the agreement of September 2010, the relevant portions of the agreement were not reproduced.

Additionally, the court reflected that the Labour Court failed to call evidence from the signatories to the agreement to explain its provisions and clarify its scope of coverage.

It further did not proceed to consider the precise ambit of the agreement and its implications for the appellants' claim before the arbitrator.

As a result, it did not make a finding on this critical aspect of the matter despite noting some causal nexus between the Nasho award and the 2010 Agreement.

The court further reasoned that it appeared common cause that the present appellants were part of the 1,078 claimants who were beneficiaries to the Nasho award and that since the Works Council Agreement was made in September 2010, they would have a justifiable claim to the benefits accruing from that agreement. The court concluded as follows:

“In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu. This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.”

Hence the proceedings in the court a quo which are the subject of this appeal.

PROCEEDINGS IN THE COURT A QUO

The remittal proceedings commenced with the appellants' Statement of Claim, to which the affidavit of Joseph Lungu, the first appellant, was attached.

Mr Lungu averred that the appellants were part of the 1,078 workers in whose favour the arbitral award by Nasho was made. In support of this position, Mr Lungu relied on a list attached to a memorandum which was addressed to one Mr Rwatirera on 5 September 2012.

The respondent's notice of opposition was supported by affidavits from different personnel in the respondent's employ.

The first deponent was Mr Rwatirera, a member of the respondent's Works Council that negotiated the September 2010 Works Council Agreement.

He averred that there was no list of the claimants who appeared before Arbitrator Nasho as none was furnished or attached to those arbitral proceedings. As such, he argued that the list produced by the appellants was tailor-made for the proceedings.

He thus, denied approving or signing the list produced by the appellants.

Mr Rwatirera further indicated that the employees who were covered by the 2010 Agreement were permanent, non-managerial employees and not fixed term contract employees since the latter's terms and conditions were regulated by their individual contracts of employment and were not subject to any Works Council negotiations nor Workers Committee representation.

He also averred, that, it was generally accepted by the respondent, the then Worker's Committee representatives, the general body of the respondent's permanent employees, and most of the fixed-term contract employees, that, fixed term contract employees were not within the scope of the arbitral proceedings before Nasho and the subsequent Agreement of 2010.

He also asked the court to note that the appellants signed fixed term contracts of employment providing for a salary of $250 per month well after the September 2010 Agreement was concluded.

The second deponent, Mr Mugabe, the chairman of the Workers Committee and a member of the Works Council in September 2010, attested that the salaries and benefits of the Work's Council Agreement were intended to apply to permanent employees in Grades 1 to Level 2 and not to fixed-term contract employees.

The third deponent, E Makaha, a former vice-chairman of the Worker's Committee and a member of the Works Council confirmed Mr Mugabe's averments.

The fourth deponent was Mr Mavengano, the former Vice Secretary of the Workers Committee and a member of the Works Council who authored the list dated 12 September 2012.

He disputed the authenticity of the list produced by the appellants.

The fifth and sixth deponents, A. Saburi and T. Hungwe, respectively, who were management representatives in the Works Council Agreement, averred that the Worker's Committee did not, at any time, represent fixed-term contract employees in negotiating their salaries and benefits.

In response, the first appellant disputed the respondent's averments in their totality.

At the hearing, the respondent took a point in limine that the founding affidavit of Mr Lungu, was improperly before the court as he was not a signatory to the Works Council Agreement of 2010 as required by the remittal order.

To the contrary, counsel for the appellants argued, that the order in SC01-17, which remitted the matter to the court a quo, was not restrictive, but left it open for the court to receive any other sworn evidence apart from that of signatories to the Works Council Agreement.

The court a quo upheld the preliminary objection and expunged the affidavit of the first appellant from the record.

Thereafter, two witnesses testified for the appellants.

The first witness, Mr Muronzi, averred that the applicants participated in the proceedings before arbitrator Nasho and contributed $2 towards arbitration costs. However, he stated that he was not a member of the Workers Committee and was not a signatory to the September 2010 Agreement and was cognisant of patent irregularities on the appellants' list.

The second witness, Mr Mushayabasa averred that he was on a specific term contract and was one of the employees who contributed $2 for arbitration costs before Arbitrator Nasho following an address by one Ziki, a member of the then Workers Committee.

The respondent led evidence through Mr Rwatirera, who, apart from reiterating the averments in his founding affidavit, testified that it had always been the respondent's practice that fixed term employees were excluded from the Works Council.

Work's Council members were voted into office by permanent members of staff only.

He also testified that the Workers Committee only represented permanent members of staff.

He further confirmed the fact that the applicants signed further contracts of employment, with a different salary from that of permanent employees, long after the September 2010 Works Council Agreement was concluded.

He reiterated that all the employees on fixed-term contracts were not part of the Nasho proceedings.

DETERMINATION OF THE COURT A QUO

The court a quo dealt with the issue of whether or not the appellants had discharged the onus on them of proving that they were included in the September 2010 Works Council Agreement.

The court had regard to the specific provisions of the September 2010 Works Council Agreement, the minutes accompanying that Agreement, and sworn evidence from the signatories to the Agreement.

The relevant clause on which the appellants base their claim provides as follows:

“The Works Council resolved to recommend to the Board that;

(i) A net salary of $500 per month be paid to all employees across the board for the period 01 March 2009 to 31 December 2009. (This is inclusive of transport allowance of $50 per month and rental support of $200 per month).

(ii) A thirteenth cheque should be paid to all employees for the same period.”…,.

Regarding the September 2010 Works Council Agreement, the court a quo found, that, the reference to “all employees” in the agreement was not determinative of whether or not the applicants were entitled to the salaries and benefits stipulated under that agreement. This was because the respondent had several employees ranging from fixed-term, permanent term, to those contracted for casual work or seasonal work.

Accordingly, it posited that the use of the term “all employees” was vague and it was unable to decide which of the meanings applied by both parties was correct.

The court then held that the provisions of the September 2010 Works Council Agreement did not assist the appellants to discharge their onus.

Concerning the minutes accompanying the Agreement, the court a quo found, that, they were no different from the Works Council Resolutions in that there was no indication whether or not the mentioned employees were on fixed term or permanent employment.

Accordingly, it was unable to decide whether the appellants were included in the term 'employees' as it appeared in the minutes. Therefore, the court ruled that the minutes of the Works Council meeting did not assist the appellants to discharge the onus on them.

As regards the sworn evidence from the signatories to the Agreement, the court noted that the two witnesses who testified for the appellants were not signatories to the agreement or members of the Works Council.

It proceeded to disregard their evidence for non-compliance with clause 3.1 of the order for remittal.

The court a quo further found, that, in any event, the evidence before it was that of sworn affidavits of members of the Works Council who were present when the agreement was reached stating that the appellants were not covered by the agreement.

Further, the authenticity of the list of names relied upon by the appellants was put in issue.

After analysing the list tendered by the appellants, the court remarked, that, on a balance of probabilities, the appellants names were interposed on an existing list. It opined that the list on which the appellants names appeared might have been a combination of documents that were prepared for different purposes.

In the result, it held that the document could not be taken as proof of the people who were involved in the arbitration proceedings before Arbitrator Nasho.

The court concluded that the appellants had not been able to discharge the onus of proving that the salaries and benefits stipulated in the September 2010 Works Council Agreement were intended to apply to them.

It then dismissed the appellants' claim with costs.

This decision prompted the appellants to note the present appeal on the following grounds:

“1. The court a quo erred in coming to the conclusion that the founding affidavit of Joseph Lungu was not properly before it and accordingly striking if off and in consigning the viva voce evidence given on behalf of the appellants to the same fate.

2. A fortiori, the court a quo erred in renouncing the essence of the responsibility that had been placed upon its shoulders by the Supreme Court.

3. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not requiring respondent to account for the 1,079 claimants who were before Arbitrator Nasho and in not requiring it to show how it could be said the appellants were not part of those claimants, all the circumstances of the matter (sic).

4. Having found that the agreement on which appellants sued, and the minutes giving birth to it related and made reference to 'all employees', the court a quo erred in coming to the conclusion that such reference was not determinative of the issue and that it still left room for the conclusion that the appellants were not contemplated by the words 'all employees'.

5. The court a quo erred in not coming to the conclusion that though appellants could not lead the evidence of the signatories to the agreement and that for reasons that were beyond them, all the objective evidence which the Supreme Court had related to and directed be taken into account led to the inexorable conclusion that appellants were covered by the agreement.

6. The court a quo erred in not coming to the conclusion that appellants were on the list of employees which formed part of the Supreme Court record and which respondent had dishonestly tried to amend after the fact that there had accordingly never been a dispute as to their inclusion in the agreement.

7. The court a quo seriously misdirected itself, such misdirection amounting to an error in law in not concluding that the discrepancies on the numbers of the employees appearing on the lists were explicable on the basis that some of the employees who had made their contributions had not appeared in the Nasho list.”

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants argued, that, the court a quo misdirected itself in ignoring the fact that the only list that contained the names of the 1,079 employees that were covered by the September 2010 Works Council Agreement was the list provided by the appellants.

He submitted that the failure by the respondent to produce the original list of 1,079 employees, covered by that Agreement that it relied on, but, instead, attaching a list with 237 employees indicated that the only list of employees that could be relied on was that produced by the appellants.

He further submitted, that, since the respondent had not disputed the authenticity of the list of 1,079 employees produced by the appellants in this Court when the matter initially came on appeal, it could not seek to do so during remittal proceedings.

Counsel for the appellants also argued that the phrase “all employees” as used in the resolution of the Works Council Meeting, and the Minutes that followed, was unambiguous and applied to all the respondent's employees without discrimination.

This, he submitted, was supported by the fact, that, during the dollarisation period, all the respondent's employees were getting allowances instead of salaries and the object of the arbitration proceedings, held before Arbitrator Nasho, was to discuss the regularisation of all employees' contracts of employment regardless of whether they were permanent or on fixed term contracts.

As such, he contended that there was no justifiable basis upon which the respondent could exclude the appellants.

Further, that regard being had to section 5 of the Labour Court Act [Chapter 28:01], which provides for the protection of employees against discrimination, there was no justification in distinguishing the salary payable to fixed term employees and permanent term employees in the regularisation process.

Counsel for the appellants also submitted that the court a quo erred in taking a rigid approach in resolving the matter leading it to irregularly striking out part of the appellants' evidence.

He submitted that the fact that the evidence was unnecessary does not mean that the appellants did not have a valid claim.

He also submitted, that, the court a quo should not have found that the list of 1,079 employees produced by the appellants was doctored in the absence of expert evidence to that effect.

He also submitted that the Works Council minutes refer to “all employees”.

There was no application to rectify the minutes and it leads to one conclusion - that they applied to all employees.

He further contended, that, there was uncontroverted evidence that the appellants contributed money towards the costs of the arbitration.

Conversely, counsel for the respondent submitted, that, the court a quo could not be faulted in finding that the appellants had failed to discharge the onus upon them of proving that they were included as beneficiaries in terms of the September 2010 Works Council Agreement.

He contended that the onus was on the appellants to prove that they were covered by the Agreement.

He submitted that the court a quo was correct in restricting itself to the parameters set by this Court when it remitted the matter, hence, part of the appellants' evidence was struck out.

It was also his argument that the court a quo had made a factual finding that the list of employees provided by the appellants had patent irregularities and that such factual finding could not be upset by this Court unless the appellants established that such a finding was grossly unreasonable.

Furthermore, he submitted that the court a quo, having found that the text used in the Works Council Meeting, and the subsequent Minutes, did not help the appellants' case, correctly determined that no evidence had been put before it by the appellants to prove that they were part of the 1,079 employees who appeared before Arbitrator Nasho.

ISSUE FOR DETERMINATION

Although the appellants have raised several grounds of appeal, I take the view that the appeal can be determined on the following issue:

WHETHER THE COURT A QUO ERRED IN FAILING TO MAKE A SPECIFIC FINDING ON WHETHER OR NOT THE APPELLANTS WERE COVERED BY THE WORKS COUNCIL AGREEMENT OF SEPTEMBER 2010

In determining this issue, it is necessary to first consider the import of the order in SC01-17 remitting the matter to the court a quo.

That order enjoined the court a quo to determine whether or not the salaries and benefits stipulated in the September 2010 Works Council Agreement of 2010 were intended to apply to the appellants; and, if so, the quantum thereof. Put differently, the court a quo had to determine if the appellants were included in that Agreement.

An examination of the court a quo's ruling reflects that the court a quo did not make this finding.

Having considered the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, as directed by this Court under SC01-17, the court a quo remarked that it was unable to decide whether or not the appellants were included under the agreement.

The court a quo then invoked the principle of onus to the effect that the appellants failed to prove that they were covered by the 2010 agreement.

The court a quo's decision was premised on the inability to resolve the issues in dispute.

I regurgitate the relevant portions of the court a quo's judgment:

“(1) The specific provisions of the Works Council Agreement of September 2010

In our view, the text of the Works Council meeting resolutions of September 2010 does not resolve the issue.

The use of 'all employees' leaves the Court unable to decide which of the two meanings propounded by the parties is correct

It therefore follows that provisions of the Works Council Agreement of 2010 does not help the applicants to discharge the onus upon them.

(2) The Minutes Accompanying the Agreement

The minutes of the Works Council meeting of 16 September 2010 leaves the court in the same position as after considering the Works Council Resolutions of September 2010.

The Court is unable to decide whether the Applicants were included in the term employees as it appears in the minutes.

The minutes of the Works Council meeting of 16 September 2010 therefore do not assist the Applicants to discharge the onus upon them.”…,.

It follows that the court a quo failed to make a determination on the pertinent issue upon which the matter was remitted.

The court a quo's inability to make a finding is a serious misdirection. It is tantamount to not making a decision at all.

In PG Industries (Zimbabwe) Limited v Bvekerwa & Ors SC53-16…, the court opined on the effect of a court's failure to determine an issue in dispute as follows:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.

Although the learned judge may have considered the question as to whether or not there was an irregularity in the citation of the employer, there was no determination on that issue. In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity.”…,.

In casu, the court a quo, whilst accepting the parties' dispute regarding the import of the September 2010 Works Council Agreement and the minutes thereto, did not make a finding on whether in light of this evidence, the appellants were included in the September 2010 Agreement.

The court could not have failed to determine this crucial issue as the relevant facts upon which it could reach an objective decision were before it.

The irregularity is apparent in the court a quo's assessment of the specific provisions of the September 2010 Works Council Agreement and the minutes accompanying that Agreement.

The finding by the court a quo, that the appellants failed to discharge the onus placed on them to prove that they were covered by the 2010 Agreement did not dispose of the matter. This is so because the question remained whether or not the appellants were covered by the Agreement regard being had to the evidence placed before the court a quo.

This was not an issue the court a quo could ignore. The court was obliged to making a finding.

It failed to do so.

Having found that the court a quo grossly misdirected itself, in failing to make a clear cut determination, the pertinent question that arises is whether the subsequent finding by the court, that the appellants failed to discharge the onus cast upon them, to prove that they were covered by the September 2010 Agreement, was correct.

In Pillay v Krishna & Another 1946 AD 946…, the court made the following remarks regarding the burden of proof in a matter:

“…, the duty which is cast on the particular litigant, in order to be successful of finally satisfying the Court that he is entitled to succeed on his claim, or defence, as the case may be, and not in the sense merely of his duty to adduce evidence to combat a prima facie case made by his opponent.

The second is that, where there are several and distinct issues, for instance a claim and a special defence, then, there are several and distinct burdens of proof, which have nothing to do with each other, save of course that the second will not arise until the first has been discharged.

The third point is that the onus, in the sense in which I use the word, can never shift from the party upon whom it originally rested.

It may have been completely discharged once and for all, not by any evidence which he has led, but by some admission made by his opponent on the pleadings (or even during the course of the case) so that he can never be asked to do anything more in regard thereto; but the onus which then rests upon his opponent is not one which has been transferred to him: it is an entirely different onus; namely, the onus of establishing any special defence which he may have.”…,.

From these remarks, one can note, that, the burden of proof is the obligation upon a litigant to establish facts which persuade the court to rule in his or her favour.

It invariably involves a court's weighing of an applicant's claim together with the probabilities which arise from the circumstances of the case to decide whether he is entitled to the relief sought.

Therefore, the question of whether or not a party has discharged the onus upon it cannot be determined by a court's indecision. This is particularly so in an instance where the court can evaluate the facts and evidence and decide which version is more likely than not to be true.

It is on this basis that I have concluded that the court a quo did not correctly apply the principle of onus of proof to the matter before it.

Counsel for the appellants urged the court to consider, that, on a holistic approach to the matter, there was sufficient material for this court to make a finding that the appellants were part of the September 2010 Works Council Agreement.

That would be tantamount to asking this Court to be a court of first and last instance.

This Court cannot do so for the reason that the general position of law is that for the Supreme Court to consider a case, a lower court or tribunal must have made a relevant order. Its duty is to determine whether those decisions should be confirmed, changed, or reversed. This is because the Supreme Court exercises appellate jurisdiction which is conferred on it by sections 9 and 21 of the Supreme Court Act [Chapter 7:13] and section 169 of the Constitution of Zimbabwe, 2013.

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:

“(b) It is not ordinarily in the interests of justice for a court to sit as a court of first and last instance, without there being any possibility of an appeal against its decisions…”

In any event, there is need for the leading of evidence which the court a quo is best suited to do as is provided in terms of sections 89(2)(a)(i) and 89(5) of the Labour Act [Chapter 28:01].

DISPOSITION

The court a quo's failure to determine whether, in terms of the specific provisions of the September 2010 Works Council Agreement and the Minutes accompanying the Agreement, the appellants were entitled to the benefits therein, constitutes a material misdirection justifying interference by this court.

It is also a matter which the court a quo is in as good a position to address, thus, a remittal is appropriate in the circumstances.

The matter would be remitted to be heard before a single judge who shall not be any of the judges who determined the matter previously.

In the result, the appeal succeeds in respect of Ground 2 and is dismissed in respect of the rest of the grounds. It would be fair, in the circumstances of this case, that each party bears its own costs.

It is accordingly ordered as follows:

(1) The appeal be and is hereby allowed.

(2) The judgment of the court a quo be and is hereby set aside.

(3) The matter be and is hereby remitted to the court a quo, before a different Judge, for a proper determination of whether, on the basis of specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, the salaries and benefits stipulated in that agreement were intended to apply to the appellants.

(4) If the answer is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

(5) Each party shall bear its own costs.

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.BackgroundThe appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. ...

This is an appeal against the judgment of the Labour Court setting aside an arbitral award in favour of the appellants which upheld their claim for the payment of arrear salaries and benefits.

Background

The appellants, being 153 in number, were employed as security guards on fixed-term contracts renewable every three months. Their periods of employment ranged from 2007 and 2008 until January and April 2011 when their contracts of employment expired by effluxion of time.

Their contracts were not renewed because the project for which they were employed was finally wound up in 2011.

In July 2010, in a separate matter involving the respondent, its Workers Committee, and its employees, the first arbitrator (Nasho) ordered the payment of back pay, from 1 March 2009 to the date of the award, in line with the multi-currency system.

In conformity with that award, a Works Council Agreement was concluded, on 15 September 2010, to fix the back-pay due to all employees and the salary structure for non-managerial employees from 1 January 2010 onwards.

In a subsequent matter, the appellants in casu challenged the termination of their employment on the basis that their contracts had become permanent upon repeated renewal.

The second arbitrator (Mugumisi) dismissed their claim of unfair dismissal on 4 April 2012.

On appeal, the arbitral award was upheld by the Labour Court. That decision is currently pending an application for leave to appeal to this court.

On 10 December 2012, following the rejection of their unfair dismissal claim by arbitrator Mugumisi, the appellants filed a further claim for the payment of arrear salaries and benefits.

The third arbitrator (Mambara) found in their favour and awarded the payment of arrear salary and benefits, in accordance with the 2010 Works Council Agreement, from 1 January 2010 to the date when each claimant was retrenched.

The respondent, being aggrieved by that award, applied to the Labour Court for the review of the award.

Decision Appealed and Grounds of Appeal

The court a quo rejected two of the grounds of review mounted by the respondent.

It found, that, the Mambara award did not improperly seek to review or enforce the Nasho award. It also found, that, the prior decision of the court, upholding the Mugumisi award, was different from the matter currently before it because the former concerned back pay from the date of termination to the date of reinstatement as opposed to salary and benefits accrued before termination.

Consequently, it was not necessary that the current matter be held in abeyance pending the determination of the appeal in the earlier matter.

The court a quo found in favour of the respondent on the remaining two grounds of review:

(i) Firstly, it held, that, the Mambara award did operate to review and alter the court's previous decision that the appellants had not been unfairly dismissed. This resulted in uncertainty on the employment status of the appellants and the possible institution of other unnecessary claims.

Moreover, the arbitrator's findings, that, the appellants had implied permanent contracts of employment and that they had been retrenched were equally erroneous.

(ii) Secondly, the court found, that, the issue of the appellants grades was not part of the arbitrator's terms of reference. Thus, the arbitrator had misdirected himself in going beyond his remit and basing his award on extraneous terms of reference.

The court accordingly held, that, the review succeeded on these two grounds.

The arbitral award was set aside and substituted with the dismissal of the appellants claim.

The grounds of appeal in casu are that the court a quo erred in the following respects:

(i) In concluding, that, the arbitrator's award, mandating the quantification of an admitted liability, had the effect of altering the court's previous judgment.

(ii) In placing any significance on the arbitrator's misuse of the word retrenchment.

(iii) In concluding, that, the arbitrator had effectively conducted a re-grading exercise in determining what was due to the appellants.

(iv) In concluding, that, there was a reviewable issue raised before the court....,.

The Merits

Counsel for the appellants submits, that, the arbitrator did not go outside his terms of reference.

The Mambara award found, that, the 2010 Works Council Agreement (the 2010 Agreement) applied to all of the respondent's employees, including the appellants, in conformity with the Nasho award. It did not re-grade the appellants but simply provided that each claimant be paid in accordance with the 2010 Agreement from 1 January 2010 to the date of termination.

As regards the actual wording of the operative part of the award, he proffers the strange argument, that, the reference to 1 January 2010 is a mere typographical error and should have been a reference to 1 February 2009, which was the commencement date for payment claimed by the appellants.

He further argues, equally startlingly, that the use of the term “retrenched” in relation to the closing date for payment in the Mambara award is of no significance and must be regarded as being inconsequential. Rather, it must be read and construed as relating to the respective date of termination of employment of each appellant.

Counsel for the respondent counters, that, the arbitrator clearly went beyond the terms of reference set out at the beginning of his award.

Moreover, he erroneously applied the terms of the 2010 Agreement to the appellants by conflating various claims. The 2010 Agreement was confined to permanent employees and did not extend to the appellants who were employees on fixed term contracts.

Finally, he notes, that, the references to 1 January 2010 and retrenchment, in the operative part of the arbitral award, should not be regarded as mere typographical errors.

On the question of re-grading, arbitrator Mambara rejected the respondent's argument, that, the appellants had no specific grade in terms of their contracts of employment. Instead, he applied the Nasho award, which ordered that the salaries of the respondent's employees be regularised, coupled with the salaries specified in the 2010 Agreement.

The court a quo found, that, the arbitrator misdirected himself in re-grading the appellants and thereby going outside his terms of reference.

It is common cause, that, the arbitrator's terms of reference raised an unfair labour practice in the respondent's alleged failure to pay arrear salaries and benefits due to them from 1 February 2009 to the date of termination of their respective contracts of employment.

The arbitrator dealt with this question by following the Nasho award and adopting the lowest salary figure payable as stipulated in the 2010 Agreement.

In my view, this did not entail any re-grading of the appellants but simply involved applying the sums derived from the exercise conducted by the Works Council.

I am therefore unable to agree with the finding of the court a quo that the arbitrator exceeded his terms of reference.

The appeal accordingly succeeds in this particular inconclusive respect.

On the other hand, the operative part of the order delivered by the arbitrator is extremely problematic. It states:

“That the Respondent be and is hereby ordered to pay to each and every Claimant arrear salaries and benefits per the 16 September 2010 Works Council Agreement from 1st January 2010 to the date each and every claimant was retrenched.”…,.

I have no doubt that the learned arbitrator was alive to the fact that he was called upon to deal with claims for salaries and benefits from 1 February 2009 to the date of termination of each appellant's contract of employment.

This emerges clearly from his stated terms of reference and his comments at the beginning, and end, of his award.

I also have no quarrel with the trite proposition that technicalities should not be allowed to impinge upon or obstruct the delivery of justice in labour matters.

Nevertheless, I take the view that the order made by a judicial tribunal constitutes the decisive gravamen of its adjudicative process.

Moreover, it is that order that must be capable of obedience and practical enforcement by the parties concerned.

Its precise wording and exactitude of expression are therefore of paramount importance.

Consequently, where it is recklessly mis-pronounced, as it was in casu, it fails to achieve its fundamental purpose and cannot be condoned or endorsed by an Appellate Court.

To use the celebrated MacFoy phraseology, it is an arrant nullity and everything founded upon it must collapse.

In the instant case, the mis-citation of the date from which the appellants entitlement to their claims arose, i.e. 1 January 2010, is patently erroneous inasmuch as it fails to address the preceding period from 1 February to 31 December 2009.

Again, the reference to the date when each claimant was “retrenched” is entirely misplaced in the context of termination of contracts of fixed duration by effluxion of time.

As was quite correctly observed by the court a quo, the Mambara award operates to alter the earlier findings of the Mugumisi award, as confirmed by the Labour Court, that the appellants had not been unfairly dismissed.

The attendant implication of permanent employment status results in lack of certainty and the potential creation of other unnecessary claims.

In the event, I take the view that the two critical errors in the operative part of the order delivered in the impugned award are so fundamental to its validity that they cannot be disregarded and swept away as mere technicalities or typographical errors.

This conclusion effectively entails the dismissal of the remaining three grounds of appeal.

Scope of 2010 Agreement

Having disposed of the stated grounds of appeal, I still think it necessary, in the interests of justice and the finality of litigation, to consider a crucial aspect of the matter that was canvassed before the arbitrator, and the court a quo, but not properly addressed or determined by either tribunal.

This aspect concerns the exact scope of the 2010 Agreement and its possible extension to the appellants.

The arbitrator noted, that, the Nasho award required the appellants contracts to be regularised in line with the multi-currency system, from 1 March 2009 onwards. He then turned to the 2010 Agreement and concluded that it applied to the appellants.

In so doing, he referred to the minutes confirming the Agreement and signed by the parties on 27 September 2011. However, he did not reproduce the relevant portions of the Agreement or the confirmation minutes to explain or justify his conclusion that the benefits accruing from the Agreement extended to the appellants.

The court a quo also noted the operative part of the Nasho award that called upon the respondent to regularise its employees contracts. It then referred to the subsequent 2010 Agreement in which “it was resolved that a net salary of $500 per month be paid to all employees across the board for the period 1 March 2009 to December 2009.”

It further noted, that “the Works Council agreed to a salary structure for 1 January 2010 to date for its non-managerial grades” ranging from $500 to $1,092.

Again, the court did not reproduce the relevant clauses of the 2010 Agreement. Nor did it call for any evidence to be adduced, as it was statutorily empowered to do, from the signatories to that Agreement, to clarify or explain its provisions and scope of coverage.

In the event, the court did not proceed to consider the precise ambit of the Agreement and its implications for the appellants claims before the arbitrator.

Indeed, it made no finding whatsoever on this critical aspect of the matter, despite having recognised some sequential and causal nexus between the Nasho award and the 2010 Agreement.

It appears to be common cause, although even this may need clarification, that the present 153 appellants were part of the 1,078 claimants and beneficiaries of the Nasho award rendered in July 2010.

That award also ordered the parties involved to reconvene through the Works Council to regularise the employees contracts in line with the multiple currency system with effect from 1 March 2009.

Thereafter, the Works Council was convened in September 2010 and concluded the Agreement presently under consideration.

If this sequence of events is correct, and if the 2010 Agreement was designed to embrace all of the respondent's employees, it would follow that the appellants have an eminently justifiable claim to the benefits accruing from that Agreement.

In the circumstances, it seems just and equitable that this matter be remitted to the court a quo to clearly determine whether or not the scope of the 2010 Agreement extended to all of the respondent's employees - including the appellants in casu.

This will not only serve to ensure that justice is attained but also to secure finality to the protracted and costly litigation between the parties.

As regards costs, in view of the partial success coupled with the partial failure of the appeal, as well as the impending remittal of the matter to the court a quo, I think it fitting that each party should bear its own costs.

In the result, it is ordered as follows:

1. The appeal succeeds in respect of Ground 3 and is dismissed in respect of Grounds 1, 2 and 4 in the Notice of Appeal.

2. The judgment of the court a quo is set aside insofar as it relates to Ground 3 in the Notice of Appeal.

3. The matter is remitted to the court a quo:

(i) To determine, on the basis of the specific provisions of the Works Council Agreement concluded in September 2010, and the minutes accompanying the Agreement, and having regard to sworn evidence from the signatories to the Agreement, whether or not the salaries and benefits stipulated in that Agreement were intended to apply to the appellants; and

(ii) If, the answer to that question is in the affirmative, to quantify the salary and benefits due to each appellant in terms of the Agreement, from 1 March 2009 to the respective date of termination of each appellant's contract of employment, subject to the deduction of such payments as each appellant may have received by way of salary and benefits during the relevant period.

4. Each party shall bear its own costs in respect of this appeal.

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.There were no appearances for the second and third respondents.FACTUAL ...

This is an appeal against the entire judgment of the Labour Court handed down on 10 March 2017. The Labour Court dismissed the appellant's application for review challenging the disciplinary proceedings that led to his dismissal from the first respondent's employment.

There were no appearances for the second and third respondents.

FACTUAL BACKGROUND

The appellant was employed by the first respondent as its Chief Executive Officer (hereinafter “CEO”) between the period 2009 until the dissolution of its Board in 2013.

The appellant had been employed on a contractual basis with his subsisting contract having been renewed in May 2011.

On 14 November 2013, the then Acting Secretary for Information, Media and Broadcasting Services, wrote to the appellant placing him on leave with full pay until further notice. The letter stated, that, the appellant was placed on leave due to the exacting challenges faced by the first respondent which required urgent intervention through a full audit of its affairs. The appellant was barred from visiting the first respondent's premises or issuing any instructions to its staff.

On 30 January 2014, the appellant was notified of the allegations of misconduct against him which were said to have been unearthed during the audit. The initial decision to place the appellant on paid leave was rescinded and substituted with leave without pay pending determination of the allegations against him.

On 18 November 2014, the appellant was duly served with a notice by the first respondent's legal representatives, to attend a disciplinary hearing to be presided over by the second respondent.

The appellant faced 32 charges of misconduct which were contained in a schedule attached to the notice of the hearing.

When the disciplinary proceedings began, the first respondent abandoned 21 of the charges against the appellant, leaving only 11.

At the hearing, the appellant argued, that, it was not competent for the first respondent to undertake disciplinary proceedings based on allegations flowing from an expired employment contract.

This argument was based on his interpretation of the Labour (National Employment Code of Conduct) Regulations 2006 (hereinafter “SI15/2006”).

Counsel for the appellant contended, that, for a person to be properly charged with misconduct, he or she must still be an employee in terms of a subsisting employment contract at both the time of the commission of the offence and institution of misconduct proceedings.

He further submitted, that, what were now termed acts of misconduct had been properly approved by the first respondent's Board.

Counsel further submitted, that, the integrity of the disciplinary proceedings was further thrown into doubt by the direct role played by the Minister of Information Media and Broadcasting Services, who initiated his suspension.

The first respondent disputed the appellant's contention that it sought to improperly charge him in terms of an expired employment contract.

It averred, that, the parties were engaged in a continuous employment relationship which was highlighted by the renewal of the appellant's contract in May 2011. Counsel for the first respondent placed reliance on the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12, whose import was that an employment relationship becomes continuous where the contract of employment is renewed immediately upon the expiry of a preceding one.

Accordingly, he argued, since the acts of misconduct in question were committed during the subsistence of an employment relationship between the parties, the appellant was properly charged.

The disciplinary hearing, chaired by the second respondent, found the appellant guilty of misconduct in respect of 7 of the 11 charges levelled against him. These were counts 1, 2, 3, 6, 7, 21 and 23 on the charge sheet.

It is not in dispute that the second respondent did not pronounce the verdict of dismissal against the appellant. This was, rather, done by the first respondent.

Dissatisfied with the disciplinary hearing's decision, the appellant filed an application for review in the Labour Court.

The basis of the application was that there was gross irregularity, gross irrationality, and illegality in the manner that the disciplinary proceedings were conducted and the decision reached.

In particular, the appellant alleged gross irregularity and irrationality, or, alternatively, illegality based on its review grounds 1.1 – 1.4. He went on to allege gross irrationality, and, alternatively, illegality and procedural irregularity on the basis of a second set of review grounds, that is, grounds 3 - 3.5.

While the manner the review grounds are formulated is somewhat confusing, it is apparent that the appellant effectively submitted two sets of review grounds, each with its own alternative grounds for review.

The court a quo did not advert to the second set of review grounds (nor the alternative thereof), but, determined the matter on the basis of the first set which alleged irregularity in the proceedings as follows:

1. A number of charges levelled against the appellant related to alleged acts of misconduct arising from a contract of employment which had expired;

2. The first respondent, at all material times, either directed or approved all acts of the appellant which were then later deemed as misconduct on his part;

3. The proceedings were initiated by the Minister of Information Media and Broadcasting Services who was not a party to the contract of employment; and

4. The first respondent improperly imposed a penalty before the disciplinary proceedings were completed, contrary to SI15 of 2006 and section 12B(4) of the Labour Act [Chapter 28:01].

The appellant consequently sought nullification of the disciplinary proceedings and reinstatement as an employee of the first respondent.

The court a quo dismissed the appellant's application for review.

It held, that, the acts of misconduct in question were committed during the subsistence of the parties employment relationship.

The court found, that, the appellant did not adduce any evidence to disprove the claim that he enjoyed a continuous employment relationship with the first respondent during the period 2009 to 2013. It stated, that, the renewal of the contract, in May 2011, did not vary the essential terms of his employment as he remained both the Principal Accounting Officer and Chief Executive Officer (CEO) of the first respondent.

For this finding, the court cited an excerpt from the case of Van Der Post v Twyfelhock Diamond Prospecting Syndicate (1903) 20 SC 213 to the effect, that, where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document.

The court a quo also relied on Air Zimbabwe v Chiku Mensa & Anor SC89-10 as an authority supporting its decision to uphold the outcome of the disciplinary proceedings.

It was stated in that case, that, a person guilty of misconduct should escape the consequences of his misdeeds because he is innocent, not because of a failure to conduct proceedings properly by another employee.

In relation to the appellant's third ground of review, the court held, that, the disciplinary proceedings conducted by the second respondent were not vitiated by virtue of the Minister of Information and Media Broadcasting (and not the first respondent, his former employer) having authored the letter of suspension. The court took the view, that, the absence of a letter of suspension was, in any case, not fatal to the conduct of disciplinary proceedings. It cited in this respect the following sentiments of the court in Shumbayaonda v Ministry of Justice Legal and Parliamentary Affairs and Anor SC11-14:

“…,. Suspension is not a prerequisite to the holding of disciplinary proceedings, and, a disciplinary hearing does not have to take place during the period of suspension….,.”

Finally, in so far as the final ground of review was concerned, the court a quo quoted the part of the second respondent's written decision of 15 April 2015, that specifically convicted the appellant of acts of misconduct 1,2,3, 6,7, 21 and 23. The excerpt also indicated that the second respondent had dismissed some preliminary issues raised on behalf of the appellant. A chronological analysis of the events that then ensued satisfied the court a quo, that, the first respondent had not 'prematurely concluded' the disciplinary proceedings, as alleged by the appellant.

In the final result, the court a quo reached the decision that the disciplinary proceedings against the appellant had not been irregularly conducted.

Aggrieved by the judgment of the court a quo, the appellant approached this Court on appeal. He prays that the decision of the court a quo be set aside and substituted with an order granting the application for review and setting aside both the disciplinary proceedings and his dismissal. His grounds of appeal are set out as follows:

1. The court a quo erred and misdirected itself in law in holding, that, under the Labour National Employment Code of Conduct Regulations, 2006, S.I.15 of 2006, the appellant could be charged with, and convicted of alleged acts of misconduct arising from an expired contract.

2. The court a quo erred in law in failing to find that the first respondent, through its various agents, either directed or approved all the acts of the appellant which were then later construed as misconduct. The court a quo ought to have found, that, the first respondent could not regard, as misconduct, the actions it either directed or approved.

3. The court a quo erred and misdirected itself in law in failing to hold, that, it was not competent for the first respondent to impose the penalty of dismissal before its own appointed disciplinary authority had made a determination on the appropriate penalty.

4. The court a quo fell into an error of law in failing to find that the appellant's conviction was contrary to the evidence that was placed before the disciplinary authority....,.

Whether or not the court a quo erred at law by making the finding that the appellant could be charged with acts of misconduct arising from an expired contract of employment

Counsel for the appellant submitted to this Court, that, in terms of SI15 of 2006, it is not competent for an employee to be charged with acts of misconduct purportedly committed during the currency of an expired contract of employment.

He emphasised, that, a fixed-term contract of employment lapses automatically on the date of its expiry, and, as a result, there was no such thing as the renewal of a fixed term contract.

Rather, so the argument goes, the old contract lapses and an entirely new contract comes into being.

Counsel contended that S.I.15/2006 employs a rigid scheme that provides an avenue for an employer to terminate an existing contract of employment owing to its serious breach by the employee.

Further, that, a person ought to still be an employee in terms of a subsisting contract of employment at both the time of the commission of the offence and the institution of misconduct proceedings by the employer.

He averred that the misconduct contemplated by section 4 of SI15/2006 as read with section 6 of the same statutory instrument refers to a subsisting employment contract.

Save for his own interpretation of these provisions, counsel cited no authority to support his assertions in this respect.

Nevertheless, on those grounds, it was counsel's submission, that, only one out of the 11 charges brought against the appellant was competent as it was allegedly committed during the currency of his existing contract.

He went on to argue, that, it was improper to combine in the same proceedings, alleged acts of misconduct relating to an expired contract of employment and a subsisting one. That being the case, counsel contends the first ground of appeal ought to succeed since the charge relating to the subsisting contract could not be severed from the others.

In response, counsel for the first respondent disputed and challenged the appellant's strict interpretation of SI15 of 2006 concerning the effect of the expiry of a contract that is immediately renewed without interrupting the employee's work nor the employment relationship between the parties.

Counsel submitted, that, the relevant provisions of S.I.15 of 2006, if properly interpreted, would not protect an employee who committed acts of misconduct during a previous contract of employment, from being charged with such misconduct during the currency of a subsequent contract.

Counsel further submitted, that, in any case, there was no cessation in the employment relationship enjoyed by the parties.

The contract renewal in May 2011 was essentially on the same terms as when the appellant was engaged as the first respondent's Chief Executive Officer (CEO) and Principal Accounting Officer.

He contended, that, the acts of misconduct only came to light following the appellant's suspension and consequent audit proceedings. Counsel submitted, that, it was competent to charge the appellant in respect of acts of misconduct committed during the currency of his prior contract as he enjoyed a continuous employment relationship with the first respondent.

Counsel for the first respondent bemoaned the dearth of judicial pronouncements in our jurisdiction on the issue of whether or not it is competent to charge an employee with acts of misconduct committed during the currency of an expired employment contract which is immediately replaced with a new one on substantially the same terms.

He sought to argue, that, an employment contract, to begin with, was a contract and thus subject to the basic tenets of the law of contract. He placed reliance on the case of Van Der Post v Twyfelhoek Diamond Prospecting Syndicate (1903) 20 SC 213 where the following was held:

“Where several or a series of contracts between the same parties are concluded to effect a single purpose, they should be treated as one contractual document, and, where there is doubt as to the meaning, they should be read together to determine the intention of the parties and the same principles of interpretation should be applied in the case of any other contract.”

My reading of this case, however, suggests that it was concerned with a very different set of circumstances to those at hand.

The contracts in issue in that case were neither related to an employment relationship nor were they successive in the sense of one expiring and a new one immediately replacing it. More significantly, the case was concerned about how to interpret seemingly contradictory provisions in a number of concurrent contracts governing the sale of a property. Hence. the finding that such contracts, for purposes of interpretation of their respective provisions, should be treated as one.

The case is therefore distinguishable from the one at hand, where, the question of interpreting any provisions of the appellant's expired and subsequent employment contacts did not arise.

However, the court finds the other authority cited by the first respondent to be entirely persuasive in casu.

This is the Lesotho case of Limkokwing University of Creative Technology Lesotho (Pty) Ltd v Mosia Nkoko and Anor LC/REV 58/12.

The employee in that case, a lecturer on a fixed term contract, was charged with misconduct and subjected to a disciplinary hearing on 5 July 2011. Despite this, after his contract expired, on 14 July 2011, it was immediately renewed for a further year with effect from 15 July 2011. That contract was due to expire on 17 July 2012.

However, the employee was subsequently dismissed from employment on 19 September 2011 based on the disciplinary proceedings held on 5 July 2011.

The dismissal was effected during the subsistence of the renewed fixed term contract while the disciplinary proceedings had been conducted during the employee's previous contract.

Similar arguments to those made for the appellant in casu, were advanced before the court in Lesotho. It was argued for the employee, that, because the dismissal was executed after the expiry of his previous contract, his employer was in breach of the employment contract since the employee could not be accused of incidents that happened during the currency of an otherwise expired contract.

On the other hand, the University argued, that, when the employee's contract expired and was renewed on 15 July 2011, the employment contract became continuous, thus giving the employer every right to take disciplinary steps against him.

Unlike in our jurisdiction, where there is no provision directly addressing the issue, counsel for the University relied on a provision in the country's Labour Code Order 1992 which defined 'continuously employed' as follows:

“…, means employed by the same employer, including the employer's heirs, transferees, and successors in interest for a period that has not been interrupted for more than four weeks in each year of such employment, during which four-week period there was no contract of employment in existence and no intention of the employer to renew it once that period has elapsed….,.”

The court then found, on the basis of this provision, that, upon renewal of his contract, the employee's employment had become continuous, meaning he could properly be charged with acts of misconduct committed during the currency of his expired fixed term contract.

The court finds merit in the first respondent's submissions on the interpretation to be given to sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006 SI15/2006.

It is also persuaded by counsel's submissions concerning the existence of a continuous employment relationship between the appellant and the first respondent, and its effect on the propriety or otherwise of the charges of misconduct brought against the former. This is notwithstanding the lack of any statutory provision similar to the one in Lesotho. The principle coming through from the Lesotho case, and the ratio therein, the court finds, can properly be adopted in casu.

The Labour (National Employment Code of Conduct) Regulations 2006, SI15/06 deals with misconduct under section 4 where its introductory part reads as follows:

“An employee commits a serious misconduct if he or she commits any of the following offences…,.

(a) Any act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his or her contract; or

(b)–(h)…,.”

The section is read together with the operative part of section 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15/06 which states the following:

“6(1) Where an employer has good cause to believe that an employee has committed a misconduct mentioned in section 4, the employer may…,.”

The court is not persuaded that the interpretation ascribed to these provisions by the appellant is correct.

The appellant was an employee of the first respondent in terms of the old contract up until midnight of the last day of the contract. In other words, he literally went to bed as the first respondent's employee and woke up still its employee on essentially the same terms of employment, albeit, under the terms of a new contract.

He proceeded to report for work as usual, and to carry out his duties.

It has not been averred, that, he picked up any terminal benefits attendant on the expiry of the old employment contract.

Thus, notwithstanding the technicality concerning the dates of expiry and renewal of the contracts in question, the employment relationship continued.

It is to be noted, that, this employment relationship started in 2009. The court a quo pertinently observed, that, the appellant had not adduced any evidence to prove that, for the period 2009 to 2013, he was not in a continuous employment relationship with the first respondent.

Against this background, to then suggest, as the appellant does, that 'employee' for purposes of sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, SI15 of 2006 refers only to one who both commits and is charged with the misconduct in question, during the currency of a subsisting contract and not a previous one, is to advocate for an absurdity.

For, it would mean, that, an unscrupulous employee, who is confident of a new employment contract upon the expiry of a current one, can commit, with impunity, a serious act of misconduct that he knows would only be discovered after his contract has expired and a new one has taken effect.

Going by the appellant's interpretation, and irrespective of any consequent damage to the employment relationship between the parties (since he would have revealed himself as an unworthy employee), the offending employee would not only be allowed to get away with it, but the employer would also, perforce, have to retain him as an employee under the new contract.

It is an accepted principle of the law, that, the Legislature is presumed not to intend any absurdity to arise in the interpretation of the laws that it enacts.

This point is highlighted thus in Webster Tongoona Rushesha & Ors v Alexious Mashingaidze Dera & Ors CC24-17:

“It is a sound principle of the law, that, when interpreting a statutory provision, the court must be alive to the presumption that the legislature does not intend irrational or unreasonable results. The interpretation of a statute and indeed a Constitution is based not only on what the provision says but also on what the provision does not say….,.”

Applied to the circumstances at hand, the court holds, that, the absence from sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15 of 2006 of words expressly including an employee who might have committed acts of misconduct during the currency of a previous employment contract, does not detract from the intended meaning of the two provisions in question.

Accordingly, the absurdity alluded to could not have been in the contemplation of the Legislature.

A contract of employment, renewed immediately after an expired one, normally is indicative of the trust and confidence that the employer has in the employee's ability and competence in the performance of his/her work.

By no stretch of the imagination should the renewal of a contract be seen as a means to wipe away any acts of misconduct committed by the same employee during the currency of the previous contract or contracts where such acts only come to light after the expiry and renewal of the old and new contracts respectively.

Such a position would be untenable and clearly inimical to the well-being of any enterprise, business, or other employer/employee concern.

To the extent that it would amount to rewarding, rather than punishing an errant employee, it runs counter to the letter and spirit of sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, SI15/06.

These provisions are concerned with bringing to book an employee who has committed an act of misconduct.

Pertinently, at the time that he was charged with the acts of misconduct in question, the appellant was, in any event, an employee of the first respondent, and not an ex-employee.

The court therefore finds, that, the appellant fell squarely into the category of employees referenced in sections 4 and 6 of the Labour (National Employment Code of Conduct) Regulations 2006, S.I.15/06. This is notwithstanding the fact, that, the acts of misconduct in question were committed during the currency of the appellant's previous contracts of employment.

As for the continued working relationship between the parties, the court finds the following excerpt instructive concerning the relationship between a contract and the employment relationship that it creates between the employer and employee:

“…, the employment contract brings into being the relationship that labour legislation seeks to regulate. However, the agreement no longer forms the exclusive basis for determining their subsequent rights and obligations; once parties have concluded an employment contract, the content and duration of the ensuing relationship are regulated, to a considerable extent, by statute. The employment relationship is thus something distinct from and wider than the contractual relationship. The contract of employment may therefore be regarded as little more than the founding act of a relationship the content and duration of which is regulated by statute, regulation, or collective agreement.”…,.

See JOHN GROGAN's 'Workplace Law' 11th Ed…,.

Relating this to the circumstances of this case, the position is confirmed, that, the appellant cannot rely solely on his previous contracts of employment to argue that he cannot be charged with any act of misconduct committed during the currency of those contracts.

On the basis of the authority cited above, the expired contracts no longer formed the exclusive basis for determining the parties subsequent rights and obligations.

It follows, that, the first respondent was within its rights to charge the appellant with all acts of misconduct committed during the employment relationship that stretched from and beyond the expired contracts, into the new contact.

To the extent that it may be salutary to have a provision to that effect, there seems to be a lacuna in our law regarding the issue of whether a party can be dismissed for acts of misconduct committed under a prior employment contract by the same employer.

It is apparent, that, the appellant seeks to escape the consequences of his misconduct on the strength of a grey area in the existing legislation.

He should not be allowed to do so, but must be made to face the consequences of his actions.

When all is told, the court finds to be unassailable, the conclusion reached by the court a quo, that, the appellant was engaged in a continuous employment relationship with the first respondent at the time that he was charged with the acts of misconduct in question.

That relationship survived the expiry of his previous contract of employment and seamlessly extended into his new contract.

That being the case, the court is satisfied that the appellant was properly charged with the acts of misconduct in question, and that, procedurally, he was properly convicted.

The appellant's ground of appeal on this issue is without merit and is accordingly dismissed.

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Employment Contract re: Fixed Term Contracts, Casualisation of Labour and Tacit Relocation or Tacit Renewal

SC01-12 : AMERICAN FRIENDS SERVICE COMMITTEE vs IRENE CHAUKE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC64-15 : TELONE (PVT) LTD vs BIGBOY SENGENDE
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS
Ruled By: ZIYAMBI JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

Categories

Law Portal Zimbabwe

Employment Contract re: Fixed Term Contracts, Casualisation of Labour and Tacit Relocation or Tacit Renewal

SC01-12 : AMERICAN FRIENDS SERVICE COMMITTEE vs IRENE CHAUKE Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC64-15 : TELONE (PVT) LTD vs BIGBOY SENGENDE Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS Ruled By: ZIYAMBI JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT Ruled By: ZHOU J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA

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Law Portal
Zimbabwe

SC01-12 : AMERICAN FRIENDS SERVICE COMMITTEE vs IRENE CHAUKE
Ruled By: GARWE JA, OMERJEE AJA and GOWORA AJA

SC24-14 : KUNDAI MAGODORA AND OTHERS vs CARE INTERNATIONAL ZIMBABWE
Ruled By: MALABA DCJ, PATEL JA and GUVAVA JA

SC64-15 : TELONE (PVT) LTD vs BIGBOY SENGENDE
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

SC48-14 : ZIMTILE (PRIVATE) LIMITED vs CHINTENGO and 64 OTHERS
Ruled By: ZIYAMBI JA

SC71-15 : SIMBI (STEELMAKERS) (PRIVATE) LIMITED vs M. SHAMU and OTHERS
Ruled By: GARWE JA, GOWORA JA and PATEL JA

SC11-19 : MEDECINS SANS FRONTIERS (MSF) BELGIUM vs VENGAI NHOPI and OTHERS
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HH217-15 : GODFREY GURIRA and ESTATE LATE OBERT NDAWI and HILTON CHIKUYA and LAZARUS NEMBAWARE vs ZIMBABWE COUNCIL FOR HIGHER EDUCATION (ZIMCHE) and ROSELINE NHAMO and MASTER OF THE HIGH COURT
Ruled By: ZHOU J

SC12-21 : TOBACCO PROCESSORS ZIMBABWE (PRIVATE) LIMITED vs TONGOONA MUTASA and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and CHATUKUTA AJA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC01-17 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GWAUNZA JA, PATEL JA and MAVANGIRA JA

SC143-21 : HAPPISON MUCHECHETERE vs ZIMBABWE BROADCASTING CORPORATION (PVT) LTD and RETIRED JUSTICE JAMES DEVITTE N.O. and GIBSON MUNYORO
Ruled By: GWAUNZA DCJ, UCHENA JA and MAKONI JA