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 section
12B(1) as read with sections 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 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 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).
Mr
Mugandiwa
for the respondent submits that the respondent did not violate the
appellants right not to be unfairly dismissed under section 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 section 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 section 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 section 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 section 111B of the
former Constitution and sections 326 and 327 of the current
Constitution.
Apart
from the clear wording of section 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 pp14-15.
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 sections 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
