PATEL 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 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 [Cap 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.”
Mr Gwisai 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 s 12B(1) as read with
ss 2A(1) and 2A(2) of the Labour Act. Reliance is placed in this regard on the
decisions in Mabhena v PG Industries HH 115-2002 and Machaya
& Others v Circle Cement (Pvt) Ltd & Another HH
115-2003.
Mr Gwisai 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 inWomen's Health v Shamuyarira
2010 (1) ZLR 127 (S) is distinguishable in this respect. Moreover,
he argues that s 12B(3)(b) of the Labour Act 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 s
12B(1).
Mr Mugandiwa for the respondent submits that the respondent did not
violate the appellants' right not to be unfairly dismissed under s 12B(1) of
the Act by terminating their fixed term contracts with effect from the
stipulated date of their expiry. He further submits that the legitimate
expectation provisions of s 12B(3) 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 Mr.Mugandiwa'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 Mr Gwisai 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 s 12B(1) of the
Act.
I now turn
to the argument that the continual renewal of fixed term contracts over a
period of time creates a legitimate expectation of re-employment or permanent
employment. This position, in its essence, was rejected by this Court in
the Shamuyarira's case (supra), the material facts of which are
virtually identical to those in the present matter. My reading of s
12B(3)(b) of the Act does not give me any ground for departing from that
decision. The plain meaning of that provision is that the employee on a
contract of fixed duration must have had a legitimate expectation of being
re-engaged upon its termination and that he was supplanted by another
person who was engaged in his stead. These requirements are patently
conjunctive and the mere existence of an expectation without the concomitant
engagement of another employee does not suffice. 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. See s 111B of the former
Constitution and ss 326 and 327 of the current
Constitution.
Apart from the clear wording of s 12B(3)(b), we cannot avoid the explicit
provisions of the contracts in casu. The opening paragraph of
each of the contracts stipulates that “This contract shall in no way
whatsoever lead to a legitimate expectation of further employment beyond the
contract's date of termination.” This in itself, as was recognised
by Ziyambi JA in Shamuyarira's case, indisputably undermines and
renders untenable the appellants' contention of having been unfairly dismissed.
They are surely bound by the express terms that they have agreed to and
cannot then complain, notwithstanding those terms, that they had a legitimate
expectation of being re-engaged.
In principle, it is not open to the courts to rewrite a contract entered
into between the parties or to excuse any of them from the consequences of the
contract that they have freely and voluntarily accepted, even if they are shown
to be onerous or oppressive. This is so as a matter of public policy. See
Wells v South African Alumenite Company 1927 AD 69 at 73;
Christie: The Law of Contract in South Africa (3rd ed.) at
pp. 14-15. Nor is it generally permissible to read into the contract
some implied or tacit term that is in direct conflict with its express terms.
See South African Mutual Aid Society v Cape Town Chamber of
Commerce 1962 (1) SA 598 (A) at 615D; First National Bank of SA Ltd
v Transvaal Rugby Union & Another 1997 (3) SA 851 (W) at
864E-H.
In the premises, none of the arguments proffered on behalf of the appellants
grounding their claim for permanent employment or re-employment can be
sustained in the present case.
Relief Sought
Apart from
the demerits of the appeal, there is a more fundamental obstacle to the
appellant's case. As I have stated earlier, the relief sought on appeal
is either that of permanent employment or re-employment for a further nine (9)
months. From the outset, the appellants' case was that the letter of 27 March
2007 amounted to premature termination and was therefore subject to their being
retrenched in accordance with clause 21 of their contracts of employment.
The terms of reference before the arbitrator primarily revolved around
this question and the relief sought was that the matter be referred to the
Retrenchment Board. The grounds of appeal to the Labour Court were also
centred on retrenchment, challenging the arbitrator's decision for having
declined the application of retrenchment procedures and praying for an order
compelling the respondent to comply with clause 21.
It is abundantly clear, therefore, that the appellant's case did not involve
any claim for permanent employment status or re-employment. In essence,
the relief that they pray for on appeal to this Court is completely different
from what they sought hitherto. In this respect, the appellants are
effectively inviting this Court to sit as a court of first instance and to
adjudicate a matter that was not ventilated before or determined by the Labour
Court.
As was aptly observed by Korsah JA in ANZ Grindlay Bank (Zimbabwe) (Pvt)
Ltd v Hungwe 1994 (2) ZLR 1 (S) at 5A-B, it would be highly
irregular and unfair for an appellate court to assume the jurisdiction of a
court of first instance and to pronounce on issues which are properly
cognisable in a court of first instance but have not been canvassed before that
court. The same position was adopted by Cheda JA in Total Marketing
Zimbabwe (Pvt) Ltd v Pollylamp Investments (Pvt) Ltd 2007 (2) ZLR
60 (S) at 62G. It was held that it would be wrong for this Court, as if it were
a court of first instance, to consider the merits of an urgent application
before the High Court where those merits were not considered by that court
following its decision that the matter was not
urgent.
In casu, the merits of the primary relief sought by the appellants
were never debated or considered by the court a quo and, consequently,
they cannot be entertained or determined by this Court. In other words, the
Court has no remit to exceed its jurisdiction and powers on appeal as
prescribed by ss 21 and 22 of the Supreme Court Act [Cap 7:13].
In the
result, the appeal cannot succeed, both on the merits and on jurisdictional
grounds. It is accordingly dismissed with costs.
MALABA
DCJ: I
agree.
GUVAVA JA:
I agree.
Matikidze & Mucheche, appellants' legal
practitioners
Wintertons, respondent's legal
practitioners
