Arundel Spar v Sainos Masimba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT LC-H-643-14
HELD IN HARARE, 1st SEPTEMBER.2014
LC/H/390/14
AND 26TH SEPTEMBER,2014
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IN THE LABOUR COURT OF ZIMBABWE 		JUDGMENT LC-H-643-14

HELD IN HARARE, 1st SEPTEMBER.2014		LC/H/390/14

AND 26TH SEPTEMBER,2014

In the matter between:-

ARUNDEL SPAR                          Appellant

VS

SAINOS MASIMBA                        Respondent

Before the Honourable B.T. Chivizhe, Judge:

For Appellant: Mr H. Maticha (Human Resource Manager)

For Respondent: Mr G. Maoneka (Union Official)

CHIVIZHE, J:

The matter was placed before me as an appeal against an arbitral award handed down on 15th April, 2014.

The material background facts to the matter are as follows;

The Respondent was employed by the Appellant as a pie-maker in the Bakery Section. He was employed on the basis of 3 months fixed term contracts that were renewed continuously. The last such fixed term contract was due to expire on the 31st of July, 2012. The Respondent fell ill on the 17th of July, 2012. He approached the company doctor and was granted sick-leave. The sick-leave was supposed to expire on the 31st of July, 2012. According to the Appellant submissions the Respondent failed to resume his duties on the 31st of July, 2012. He only returned to work on the 17th of August, 2012. His contract of employment had however been terminated on the 31st of July, 2012 by effluxion of time. The Respondent was consequently served with notice of termination on the 17th of August, 2013 when he appeared at work.

The Respondent’s version of events is that, contrary to Appellant’s submission he returned to work on the 31st of July, 2012. He was then advised to bring a fitness certificate from his doctor before assuming his duties. The doctor recommended more sick-leave days. The Respondent had returned to work on the 15th of August, 2012 and was advised by the Human Resources Manager to return on the 17th of August, 2012. When he returned on that date he was then served with the letter termination of contract.

It is common cause that the Respondent being aggrieved lodged a complaint with the NEC designated Agent for the industry. The matter was consequently referred to compulsory arbitration. The terms of reference for the Arbitrator were to determine whether there had been an unlawful termination of contract. The Arbitrator in his award concluded that there had been an unlawful termination of contract; the Appellant had failed to institute disciplinary proceedings on the basis of the Respondent’s alleged absenteeism. The Arbitrator concluded that Respondent had been denied his right to be heard in the circumstances. The Arbitrator consequently directed reinstatement of the Respondent on the same terms and conditions. The Appellant dissatisfied with the award noted the present appeal. The grounds on which the appeal was noted are as follows;

“the arbitrator misdirected herself in finding Arundel Spar to have unlawfully and unfairly terminated the short term contract of Sainos Masimba when facts at law prove otherwise.

It is a simple fact that the Respondent absented himself from work until his contract expired on 31 July 2012. He did not notify the employer of his whereabouts only to resurface on the 15th of August flagging dubious sick notes. While it is correct that the Respondent signed a fixed duration contracts, it is him who created conditions that led to the non-renewal of the contracts.

The arbitrator misdirected self in holding that the Complainant had the right to institute disciplinary proceedings against Respondent instead of not renewing his contract. Given the scenario, there was no way a hearing could be held as whereabouts of the Respondent were unknown and there was no contractual obligation to hold a hearing as his standing contract had expired and was not renewed.

In her award statement, the arbitrator highlighted that the option taken by the Complainant of not renewing the contract is against social justice in the workplace. However, the Complainant would like to advise that employer tried to get in touch with the Respondent and failed to get his whereabouts. Respondent did not make an effort to contact the employer and notify the reason for his absence within a reasonable time. He only surfaced later with altered sick notes thus leading the Respondent to doubt their authenticity.

The Respondent would like to submit that, the decision to not renew the Respondent’s contract upon expiry was perfectly legal as it was a fixed term contract which expired at the end of its specified term. This was codified by the legislature in terms of SI 15 of 2006. It confirms that a fixed term contract automatically self terminates.

The arbitrator then gave an award for reinstatement yet the Respondent was a fixed term contractor whose contract was legally terminated upon expiry which was also excercebated by his absence from work without any communication.

The above contradictions have left us with no choice but to approach your honourable court seeking redress.”

The Respondent in his papers filed of record raises a point in limine that couched as they are the grounds of appeal do not raise questions of law as envisaged under Section 98 (10) of the Labour Act [Cap 28:01]. Although the grounds of appeal are clearly written in the form of a narrative the grounds do raise one pertinent point of law as to whether an employer is entitled, after the termination of an employment contract by effluxion of time, to institute disciplinary proceedings against the employee. I shall proceed to address the one point.

The Appellant submissions are basically the Respondent was employed on the basis a fixed term contract which was due to expire on the 31st of July, 2012. Having been granted sick-leave up to the 31st of July, 2012 the Respondent failed to return to work. He also did not notify the employer of his whereabouts only to then re-appeal on the 15th of August 2012 with sick notes from a Doctor purportedly authorising for the extension of sick-leave from the 31st of July, 2012. The Appellant position is basically that against that background, it was entitled to allow the contract of employment to simply lapse by effluxion of time without further extension or renewal. The Respondent had no legal basis to conduct a disciplinary hearing based on the charge of absenteeism. I fully agree with the Appellant’s exposition of the laws.

The Arbitrator in his analysis correctly accepted the Appellant’s factual submissions that the employer had no idea of Respondent’s whereabouts after the expiry of sick leave. He therefore rejected the Respondent version of events as submitted before him. The Arbitrator in his award however seemed to suggest that because the Respondent had been employed for a long period (four years) on the basis of fixed term contracts that were continuously renewed the Respondent had a legitimate expectation to be re-employed by the Appellant. On the basis of the decision in Kundayi Magodora and Others v Care International Zimbabwe SC 24/14 that finding was clearly wrong. According to the decision, for an employee on a fixed term to succeed with a claim for legitimate expectation under Section 12B (3) (b) of the Act one had to establish,

Firstly that one had a legitimate expectation of being re-engaged upon termination, and

Secondly that another person was employed in one’s place.

It is clear that both requirements were not established before the Arbitrator. The Arbitrator therefore erred in  expectation of being re-engaged in the circumstances. His decision being based on a wrong principle of law amounts to a misdirection. His award clearly cannot stand therefore. It has to be necessarily set aside.

It is accordingly ordered as follows;

The appeal be and is hereby allowed.

The arbitral award handed down on the 15th of April, 2014 be and is hereby set aside.

The Respondent remains dismissed from employment.