“(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. 