COTTCO v Maford Magetsi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/413/13
HARARE 11th JUNE & 30TH AUGUST, 2013
CASE NO LC/H/506/11
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/413/13

HARARE 11th JUNE & 30TH AUGUST, 2013		   CASE NO LC/H/506/11

In the matter between:-

COTTCO					Appellant

And

MAFORD MAGETSI			Respondent

Before The Honourable G Mhuri, Senior President

For Appellant :Mr Maunga (Legal Practitioner)

For Respondent:Mr M. Ngondo(Regional Officer – ZCTU)

MHURI, G:

This is an appeal against an arbitral award issued by the Arbitrator on the 13th July 2012.

The terms of reference to the Arbitrator were to determine whether Respondent was unfairly dismissed and whether the deductions by Appellant from Respondent’s November 2011 salary were lawful.

The Respondent was in Appellant’s employ as a Crop Procurement Officer. He entered into a one year fixed term contract on the 1st June 2009, which means the contract was to expire on 31st May, 2010.

On the 16th 2011 Respondent’s contract was terminated by Appellant on the ground that there was reduced workload.

Upon analysing the evidence placed before him, the Arbitrator made a factual finding that Respondent was engaged on one year fixed term contracts. The last contract was to expire in May 2012. He found as incredible the Appellant’s reason for the premature termination of the contract.

He found as a fact that Appellant had scaled up and increased its hectarage projections for the forthcoming season. He also found as a fact that Appellant engaged one Thomas Nyahwa in the place of Respondent to do the very same work Respondent was doing in the province.

These factual findings cannot be impugned in my view. To that end, the Arbitrator did not err in finding that the termination of the contract was arbitral and harsh and ordered reinstatement. Appellant’s submission that Respondent’s Code of Conduct allows termination of fixed term contracts on notice cannot in casu assist Appellant.

It is not in dispute that Section 4.5 of the Code gives the employer a right to terminate a contract of fixed duration or a contract of performance of a specific task, by giving the employee appropriate notice as provided for by law. The contract of employment under paragraph I also gives the parties a right to give one calendar month’s notice.

Paragraph 2 of the contract of employment states the duration of the contract and the renewal condition. It reads:-

“This is a one year contract and renewal is dependent on performance at the expiry of the contract .................”

In casu, the issue was not poor performance. The contract was prematurely terminated on the sole ground that there was reduced workload. This reason was rejected by the Arbitrator as evidence showed that Appellant was not being honest. The ground for the giving of notice having been rejected by the Arbitrator, it therefore follows that there was no reason why the contract had to be terminated even if the Code and the contract of employment provides for that. I am equally not persuaded by Appellant’s submission on this issue.

On the issue of deductions from Respondent’s November 2011 salary, the Arbitrator made a factual finding that the Respondent had a farming contract with Appellant which contract was different from the employment contract. He or found that the employment contract had nothing to do with the farming contract which even non-Cottco employees enjoyed.

He then ordered Appellant to reimburse the deductions it had effected on Respondent’s November salary.

I find the Arbitrator’s findings unassailable. Contract farming, it was not disputed, is different from the contract of employment. Respondent accessed the inputs as a contract farmer like any other member of the public. It was Respondent’s submission that the disbursement form filled in and signed by Respondent was kept by Appellant. This was not disputed by Appellant. That being the case, the benefit of doubt is given to Respondent that he accessed the inputs as a farmer.

To that end I do not find error in the Arbitrator’s award that Appellant reimburses Respondent the money it deducted from his salary as this was not employment related but a different contract for which there was a different recourse in case of a breach.

Overally I find that the arbitral award cannot be impugned and accordingly will dismiss the appeal in its entirety.

It is therefore ordered that the appeal be and is hereby dismissed.

Maunga & Maanda – Appellant’s Legal Practitioners