Albert Mandizha v Grain Marketing Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/227/2016
HARARE, 23 FEBRUARY 2016
CASE NO. LC/H/227/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/227/2016

HARARE, 23 FEBRUARY 2016			          	        CASE NO. LC/H/903/15

AND 13 MAY 2016

In the matter between:-

ALBERT MANDIZHA					Appellant

And

GRAIN MARKETING BOARD				Respondent

Before The Honourables  L Hove & F.C. Maxwell, JJ

For Appellant		Mr A.T. Muza (Legal Practitioner)

For Respondent		Mr S. Bhebhe (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award granted in respondent’s favour on 22 September 2015.  Appellant was employed by respondent as a General Manager on fixed terms stretching from December 2007 to November 2014.  The last contract was not renewed.  Appellant claims that he had a legitimate expectation that the last contract would be renewed upon expiry.  He approached the Ministry of Labour but the issue was not resolved.  It was subsequently referred to arbitration.  The arbitrator ruled that each specific contract terminated upon its expiry and appellant was entitled only to any outstanding terminal benefits calculated on the basis of the contractual conditions enshrined in each of the contracts.  The arbitrator also ruled that if the parties failed to agree on the quantum, they may approach the Tribunal for quantification.

Aggrieved, appellant appealed to this Court on the following grounds:

The Honourable Arbitrator erred at law in holding that the appellant’s claim of unfair Labour practice in regards to the termination of his 2007 to 2012 employment contract was prescribed.  Prescription begins to run when all the constituent facts sustaining a claim are present.  As long as the appellant remained employed by the respondent prescription did not run as there was a cognisable possibility of the respondent setting its indebtedness.

The Honourable Arbitrator also erred at law in holding that the Appellant’s claim for unfair labour practice should be dismissed.  The respondent’s deliberate and sustained abbreviation of his employment benefits from one contractual period to another violates S 6 (1) (c) of the Labour Act [Chapter 28:01].

Further in light of the evidence that was adduced during the arbitration which showed that the respondent admitted that it had committed unfair labour practices by varying the appellant’s contractual benefits, the Arbitrator erred at law by making a finding which was contrary to the evidence before her.

The Honourable Arbitrator also erred at law in holding that appellant’s contract of employment had been lawfully terminated upon the effluxion of time.  Section 12B (3) of the Labour Act [Chapter 28:01] states that an employee is deemed by operation of law to have been unfairly dismissed if his contract of fixed duration is  not renewed in circumstances where that employee had legitimate expectation of such renewal and another person was engaged in his stead.

The Honourable Arbitrator also grossly misdirected herself in determining that the appellant did not have legitimate expectation when contrary evidence had been led and not controverted meaningfully.  The respondent having renewed the appellant’s employment on previous occasions communicated its satisfaction with the appellant’s performance and recommended appellant’s continued tenure; had created a reasonable belief in the appellant that he would be re-engaged on a new contract.

The Honourable also grossly misdirected herself in determining that the appellant’s contract had been lawfully terminated.  Section 12 B (3) (ii) of the Labour Act abhors the engagement of a replacement of an employee whose contract has been terminated by effluxion of time and deems such replacement as evidence of an unfair dismissal.

Appellant prayed for the setting aside of the award and its substitution with the following;

The respondent committed acts of unfair labour practice by unilaterally varying the terms and conditions of the appellant’s contracts of employment for the period 1st December 2012 to the 30th of November 2013 and the 1st December 2013 up to the 30th November 2014.

The respondent shall pay the appellant the benefits that were unlawfully varied from his contracts for the period 1st December 2012 to the 30th November 2013 and the 1st December 2013 up to the 30th November 2014.  The parties are to compute the said benefits, failing which they can approach an arbitrator for the quantification of the said benefits.

The respondent shall transfer at no costs to the appellant the ownership of the two motor vehicles namely;

Landrover Discovery registration ADJ 3520 and

Toyota Hilux Double Cab registration ACR 2708.

The respondent unfairly dismissed the appellant when it failed to renew his contract and should reinstate the appellant without any loss of salary and benefits.  In the event that reinstatement is no longer possible, the respondent be and is hereby ordered to pay the appellant damages in lieu of reinstatement.

The respondent shall pay the costs of this appeal on the higher scale of attorney and client.

In response respondent stated that the first contract between the parties expired on 1 December 2012 and any complaint against that ought to have been made on or before 1 December 2014.  Respondent also stated that it complied with all the terms and conditions of each contract entered into by the parties freely and voluntarily and there is no unfair labour practice to talk about.  Respondent further stated that no contract was varied as each contract entered into after the expiry of the last was a new and separate agreement with its own independent and fresh terms and conditions.  Respondent denied that appellant had a legitimate expectation of the renewal of the contract as the contract was a fixed term contract whose renewal was statutorily subject to the discretion of the Minister of Agriculture.  Respondent pointed out that it was improper for appellant to raise issues of motor vehicles whose fate will be decided by the High Court before which a dispute with respect thereof is.  On the date of hearing it was submitted that the High Court had ruled in favour of respondent and the matter was subject of an appeal before the Supreme Court.

Ground of Appeal one – Prescription

The honourable Arbitrator ruled that any claim to the issues relating to the contract for the period December 01, 2007 to November 30, 2012 is prescribed in terms of section 94 of the Labour Act as amended.  Appellant argues that an alleged acknowledgement of indebtedness by the respondent’s Board of Directors forms a constituent fact that interrupts prescription and therefore the claims were not prescribed.  Respondent argues that the cause of action for all the complaints date back to 1 December 2012, therefore the matter is prescribed.  Both parties are wrong in their arguments.  Appellant’s argument that there was an acknowledgment of indebtedness is wrong.  The basis of the appellant’s argument is that the Board Chairman wrote to the Minister stating that the two one year contracts were prejudicial to appellant’s terminal benefits and therefore a set amount was recommended for payment subject to the Minister’s approval.

The correspondence sought to be relied on was not officially communicated to him.  On the authority of the case of Chirambasukwa v Minister of Justice Legal and Parliamentary Affairs 1998 (2) ZLR 567, appellant cannot rely on that correspondence.  It follows therefore that there was no admission of the indebtedness as alleged.

Respondent’s argument is faulty in that even though the contract was to be with effect from 1 December 2012, the contract was only signed by the appellant on 6 May 2013.  As argued by appellant, prescription begins to run when all the constituent facts sustaining a claim are present.  See Old Mutual Property Investment Corporation (Pvt) Ltd v GMB HH 216/02.  Appellant only became aware of the contents of the contract on signing it in May 2013.  In our view that is the date prescription began to run.  Respondent states that the complaint was made on 10 April 2015, that was almost a month before the matter had prescribed.  For the above reasons, we are unable to support the Arbitrator’s finding.  The first ground of appeal therefore has merit.

Ground of Appeal two – Unfair Labour Practice

Appellant argues that the respondent’s deliberate and sustained abbreviation of his employment benefits from one contractual period to another violates section 6 (1) (c) of the Labour Act [Chapter 28:01].  The said section states

“(1)	No employer shall –

….

(c) fail to provide such conditions of employment as are specified by law or as may be specified by agreement made under this Act …”

(underlining for emphasis)

The honourable Arbitrator dismissed the claim of unfair labour practice on the basis that the contracts of employment were independent of each other and any issues arising should be treated within the context of each specific contract.  The Arbitrator is reasoning cannot be faulted.  Appellant seeks to argue that respondent made an admission that its conduct in abbreviating the appellant’s contract with reduced benefits may be viewed as an unfair labour practice.  Appellant seeks to rely on communication that was not officially directed to him.  As stated above, such reliance is improper.

In oral argument, Counsel for appellant stated that there was undue influence on appellant to sign the unfavourable contracts.  He argued that the principle of caveat subscripto should not apply for that reason.  I do not agree.  Appellant is not an unsophisticated man.  Pages 164 to 166 of the record confirms this.  Appellant wrote to the Board Chairman making his observations on the new contract for the period 1 December 2012 to 30 November 2013.  Appellant pointed out what he was not happy with and made counter proposals.  Again on pages 170-172 appellant did the same for the contract for the period 1 December 2013 to 30 November 2014.  Both letters where written before appellant appended his signature to each contract, in the case of the 1 December 2013 to 30 November 2014, at least close to a month before.  Clearly there were some negotiations before the contract was signed.  When appellant finally put his signature to the documents, he was fully aware of what he was agreeing to.  He cannot escape the consequences of the contracts he entered into.  As stated by Patel JA in Kundai Magodora & Others v Care International Zimbabwe SC 24/14

“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.”

Counsel for appellant referred to case of Claudio Ferrari and Others v Quintin Gordon Thomas Gunner [2015] ZASCA 5 to buttress the claim of undue influence.  In that case it is stated on page 12, paragraph 31.

“It is trite that a person claiming to have been misled by a fraudulent misrepresentation, and who wishes to treat the contract concluded as void, must aver and establish that a misrepresentation as to an existing fact has been made, that the representation was false and that the party making it knew it was false, that it was material in that it induced the contract in question, and that had he known the true facts he would not have entered into the contract.”

In our view appellant has not established that his circumstances fit the test above.  By the time appellant affixed his signature on the contracts, he was aware that his objections had not yielded desired results.  He therefore cannot say “had I known I would not have entered into the contract”.  See also Gurira and Others v Zimche HH 219/15.  The claim of undue influence therefore has no merit and cannot succeed.

Counsel for appellant also argued that there was tacit renewal of the first contract and therefore the benefits appellant enjoyed under the first five-year contract continued to be applicable.  It is trite that if a fixed term contract expires and the employee continues to work, with the approval of the employer the contract is deemed to have been renewed tacitly.  However, the intentions of the parties have to be considered.  As stated in Introduction to Labour Law, 3rd ed, 1992 by SAA Swanepoel,

“in the absence of contrary indications of intention, it is assumed that the contract will continue or an indefinite period.”

In our view the circumstances of this case show contrary indications. Whilst there was no immediate signing of another contract at the expiry of one, the parties agreed to the following clause that appears in both contracts mutatis mutandis.

“2.1	Notwithstanding the date of signature of this agreement, the parties agree that the date of commencement of the employment of the General Manager by the Grain Marketing Board shall be the 1st of December 2012 (“date of commencement”) and shall terminate on the 30th of November 2013 (“termination date”) unless otherwise terminated before expiry in terms of the clause 5 to this agreement.”

Tacit renewal occurs where there are no terms governing the continued employment relationship.  In casu though there was a period within which tacit renewal could have applied, the period was removed by the agreement to back date the date of commencement of the employment period.  Appellant therefore cannot claim the benefits of the first five-year contract when a new contract was in existence for the period claimed.  The claim of tacit renewal can therefore not succeed.  We find no merit in the second ground of appeal.

Grounds of Appeal three – that Finding was Contrary to Evidence

Appellant argues that during the arbitration proceedings evidence was adduced which showed that respondent admitted that it had committed unfair labour practices by varying the appellant’s contractual benefits.  As already stated above, appellant cannot rely on correspondence that was not addressed to him and was not officially communicated to him.  In any event, it is trite that contracts of employment do not remain static see Daniel Mudenda v Lion Match Limited  SC 68/14.  As argued for respondent, if appellant did not want the new conditions of the one year contracts which were different from those in the expired five year contract, he should not have signed the subsequent contracts.  It was argued for appellant that there was unilateral variation of contract by the respondent.  That cannot be true in the face of the statements or phrases in the contracts which appellant signed.  The contracts clearly state that

“… the parties hereto agree as hereunder recorded ….”

Appellant agreed to the terms and conditions contained in the contracts and cannot resile therefrom.  We therefore do not find merit in the third ground of appeal and it cannot succeed.

Grounds of Appeal four, five and six – Legitimate expectation

Appellant argues that respondent had renewed appellant’s employment on previous occasions, communicated its satisfaction with the appellant’s performance and recommended his continued tenure thereby creating a reasonable belief in the appellant that he would be re-engaged on a new contract.  Appellant accurately states that a legitimate or reasonable expectation arises either from an express promise given on behalf of an authority or from the existence of a regular practice which the claimant can reasonably expect to continue.  See Matake & Ors v Ministry of Local Government and Ors HB-93-07 Appellant argues that the respondent’s Board of Directors created a legitimate expectation in his mind and such conduct binds respondent.  He further argues that

“The previous re-engagements, the consultant’s exercise of his option to renew, his subsequent appointment in an acting capacity and the recommendation by the Board that his contract be renewed, all coalesce to the inescapable conclusion that indeed the respondent acted and made statements that would have created a legitimate expectation in the mind of any reasonable man.”

As argued for respondent the issue of continued renewal of previous contracts does not give rise to legitimate expectation see Kundai Magodora & Ors v Care International Zim (supra), UZ-UCSF Collaborative Research Programme in Women’s Health v David Shamuyarira SC 10/10.  The fact that respondent’s Board was satisfied with appellant’s performance and recommended his continued tenure is neither here nor there.  Section 27 of the Grain Marketing Act [Chapter 18:14] governs the appointment of a general manager.  It clearly states that the Board appoints a person approved by the Minister.  Appellant as a general Manager can’t be ignorant of the requirement of the Minister’s approval.  A lot of the correspondence on record reflect that the Board always sought the Minister’s approval after it had made a resolution.  This applied even to the exit package that appellant was to be paid, and to his appointment on a care-taker basis.  For appellant to claim legitimate expectation in the circumstances, he has to prove that the Minister had given his approval to his re-engagement.  As stated in The Commissioner of Taxes v Astra Holdings (Pvt) Ltd t/a Puzey & Payne SC 131/02 in considering whether or not legitimate expectation is applicable to a decision of a public body the particular legislation in terms of which the decision is taken is relevant.  In this case the legislation requires that the Minister gives his approval before a general manager is appointed.  Appellant has therefore not established the basis for legitimate expectation.  The arbitrator cannot be faulted for holding that the claim of legitimate expectation has no legal basis.

Appellant also argues that the arbitrator should have found that there was unlawful termination of the contract as section of 12B (3) (ii) of the Labour Act abhors the engagement of a replacement of an employee whose contract was terminated by effluxion of time.  It is common cause that someone was appointed to act in the position appellant previously occupied.  However as stated for respondent once the first requirement fails, the second requirement cannot sustain the issue.  This is because the statute uses the conjunctive word “and” to prove that you must first establish the first requirement to be able to proceed to the second.  If the first requirement is not met, that is the end of the matter.  It therefore does not help the appellant that someone was appointed in his stead.  We therefore find no merit in these grounds of appeal and they cannot succeed.

Prayer sought – Transfer of ownership of Two Motor Vehicles

Among other things, the appellant is seeking that this Court orders that

“3.	The respondent shall transfer at no costs to the appellant the ownership of the two motor vehicles namely;

Landrover Discovery registration ADJ 3520 and

Toyota Hilux Double Cab Registration number ACR 2708.”

In the notice of response respondent pointed out that the issue of the motor vehicles was before the High Court.  At the hearing, counsel for appellant confirmed that the issue had been before the High Court and judgment had been passed in favour of the respondent.  He further highlighted that an appeal was pending in the Supreme Court.  He however insisted that the issue was properly before this court as it is not a common law issue but an employment issue.  Counsel for respondent correctly pointed out that the relief sought is for a rei vindicatio.

It is trite that remedies obtainable in this court must be authorized in the Labour Act [Chapter 28:01] or any enactment authorizing the application to this Court.  Rei Vindicatio is a common law remedy. See Chetty v Naidoo 1974 (3) SA 13, Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436.  This Court is a creature of statute and its jurisdiction is confined to the four corners of the statute.  It therefore follows that this court has no jurisdiction to deal with the issue.  See National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others SC 8/05, Surface Investments (Pvt) Ltd v Maurice Chinyani HH 295/14

It is therefore incompetent for appellant to ask this court to deal with an issue that is already before the Supreme Court, for which this court has no jurisdiction.  It does not matter that the issue is couched differently.  Counsel for Appellant’s insistence that the issue is properly before this court is without legal basis.

In the final analysis we do not find merit in the appeal.  It therefore fails.

Consequently the following order is appropriate.

The appeal be and is hereby dismissed with costs.

Mawere Sibanda, appellant’s legal practitioners

Kantor & Immerman, respondent’s legal practitioners

……………………………………………

Maxwell J

……………………………………………  I agree

Hove J