Agnes Samu & 4 Others v T.M. Supermarkets (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MC/37/13
MUTARE 19TH SEPTEMBER, 2013
CASE NO
JUDGMENT NO LC/MC/37/13
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IN THE LABOUR COURT OF ZIMBABWE	      JUDGMENT NO LC/MC/37/13

MUTARE 19TH SEPTEMBER, 2013			      CASE NO LC/MC/19/11

AND 25TH OCTOBER, 2013

AGNES SAMU & 4 OTHERS						Appellants

T.M. SUPERMARKETS (PRIVATE) LIMITED				Respondent

Before The Honourable G Musariri, Judge:

For Appellants:		Mr. W. Tembenuka, Unionist

For Respondent:		Mr. B. Mungure, Attorney

MUSARIRI, G:

On 23rd February, 2011 the Honourable L. Maburutse made an arbitration award.  In terms thereof, he dismissed Appellants’ claim of unlawful termination of their employment by Respondent.  Appellants then appealed to this Court against the award.

The appeal raised 3 questions

Whether the arbitrator failed to “uphold the principle of legitimate expectation”?

Appellants worked for Respondent starting from dates between 1999 and 2005.  They were on fixed term contracts which were reviewed at various times.  Their contracts lapsed between July and September, 2010.  They were not renewed.  Then Appellants filed complaints against Respondent of unlawful dismissal.  The complaints were in due course arbitrated upon leading to the aforesaid arbitration award.

The concept of legitimate expectation under section 12B(3) of the Labour Act [Chapter 28:01]  (hereinafter called “the Act”) is two pronged.  Firstly, there must be a legitimate expectation of the renewal of a fixed term contract.  In this case, the employer was in the habit of renewing the contracts upon expiry of their terms.  Thus I readily find that there was expectation of renewal by the employees.  Secondly, it must be proved that the employer engaged new employees to replace those terminated.

The arbitrator dealt with this aspect as follows,

“The applicants indicated in their written submissions that the respondent engaged other people in their positions following the termination of their employment contracts.  They failed however, in their oral submissions to substantiate the claim.”

That was a factual finding.  A factual finding by an arbitrator cannot be challenged on appeal unless it was grossly erroneous.  Nothing was said, let alone proved, in this Court to show such gross error.  I am thus satisfied that the Arbitrator was correct in dismissing Appellants’ reliance on “legitimate expectation”.

Whether the arbitrator failed “to adopt, observe or get influenced by clear judicial precedence?”

Appellants relied on 2 judgments by this Court which ruled in similar circumstances that the employees had become permanent employees by passage of time.  I respectfully disagree with that position.  In terms of Section 12 (3) of the Act, only casual employees can become permanent employees by passage of time.  Yet it is common cause that Appellants were not casual employees.  In any event a Judge of this Court is not bound by judgments of fellow Judges of the same Court.

Whether the arbitrator erred by ignoring alleged discrimination against Appellants?

Appellants alleged that fellow employees in a similar position had their contracts renewed by Respondent.  The Arbitrator also dealt with this point.  He found that,

“The Applicants allege in their written submissions that they were discriminated against, as people like Brian Chikwana, Sylvia Kurumbidza, Nelson Chirara and others who had the same conditions of employment as they remained in employment.  Unfortunately they did not raise this in the hearing.  Also they had not given a copy of their written submissions to the Respondent for him to respond to their allegations.  The Respondent was kept ignorant of this allegation and was therefore denied the chance to respond to it.  It will therefore be unfair for me to rely on evidence submitted in a hide and seek manner.”

This was a ruling on a procedural matter.  It was not a ruling on the merits.  Accordingly it could only be raised in this Court by way of review rather than appeal.  Appellants chose to appeal and thus foreclosed this argument.

All in all I find no merit in the appeal.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

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G. MUSARIRI

J U D G E