Dairibord Zimbabwe Limited v Alban Munhu

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/539/2016
HARARE, 23 MAY 2016 &
9 SEPTEMBER 2016
CASE NO LC/H/521/2015
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/539/2016

HARARE, 23 MAY 2016 &					         CASE NO LC/H/521/2015

9 SEPTEMBER 2016

In the matter between

DAIRIBORD ZIMBABWE LIMITED					APPELLANT

Versus

ALBAN MUNHU								RESPONDENT

Before the Honourable Hove J

For the Appellant	T Marume (Legal Practitioner)

For the Respondent	In Person

HOVE J:

The respondent was employed on a fixed term contract basis by the appellant.

The appellant was arrested by the police in relation to some criminal charges. He stopped reporting for duty as a consequence of his arrest.

The contract of employment which was a fixed term contract expired and the appellant did not renew it.

When the respondent eventually reported for duty, he argued that the employer had unlawfully terminated his contract of employment as he had a legitimate expectation to have his contract renewed and further the employer had employed someone in his stead.

The arbitrator found that there was no basis to terminate the contract of employment on the basis that it could no longer locate the respondent. He reasoned that the employer ought to have found from its employee’s records the respondent’s contact details and invited him to come so that he could have his fixed contract of employment renewed upon its expiry.

The appellant argues that the arbitrator erred in this respect. It submitted that there was no basis for a legitimate expectation for the renewal of the contract of employment. It was submitted that fixed term contracts terminate by effluxion of time.

For this proposition, the court was referred to several cases of the Supreme Court which dealt with the issue of legitimate expectation. Chikonye & Anor v Peterhouse School 1999 (2) ZLR 329 (S), Magodora & Ors v Care International Zimbabwe SC 24-14, UZ-UCSF Collaborative Research Programme in Women’s Health v D Shamuyariria SC 10-10.

It cannot be disputed that there really has not been set out the basis of legitimate expectation on the part of the respondent. The authorities cited state that the legitimate expectation must arise from the conduct or promises made by the employer but in this case, the respondent did not show why he held that legitimate expectation.

The record and the arbitral award show that the respondent had no basis for having a legitimate expectation. The arbitrator did not even decide the case on the basis that the respondent had a legitimate expectation.

Section 12 B (3)(b) of the Labour Act, [Chapter 28:01], the requirements of terminating a fixed term contract are clear. The section provides that:

“An employee is deemed to have been unfairly dismissed.

If on termination of an employment of fixed duration, the employee.

Had a legitimate expectation of being are engaged; and

Another person was engaged instead of the employee.

These legal requirements ought to have been the basis of the arbitrator’s decision. Deciding the matter on any other grounds as he did was a gross irregularity on the part of the arbitrator entitling this court to interfere with his decision. In National Foods v Mugadza SC 105-95 and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S), the courts held that serious misdirection on the facts would amount to a misdirection on law.

Even if the facts showed that the appellant had employed someone else in the respondent’s place (which was denied and not proved in this case) that alone would not have been sufficient to enable the arbitrator to hold that the dismissal was unfair. The respondent ought to have shown before the arbitrator that he had a legitimate expectation and further that someone else had been employed in the respondent’s stead. The facts do not disclose that these two requirements were met the arbitrator therefore misdirected himself in holding or finding that the dismissal was unlawful. There was nothing in the facts before the arbitrator to make him arrive at that conclusion that the dismissal was unfair.

The case cited by the respondent of Kenyan Airways v E Musarurwa case number SC 67-14 is not able to support the respondents case in view of Magodora & Ors v Care International Zimbabwe SC 24-14 which re-emphasized the position of law vis a vis the law in respect of the lawfulness or otherwise of fixed term contracts.

The employer had no duty to look for or to locate the respondent for purposes of renewing his contract of employment. It was his duty to report for work and not for the employer to locate him for purposes of giving him a new contract of employment. This was the basis of the arbitrator’s award, it was wrong.

The respondent also repudiated his contract of employment and or waived any rights he may have had by failing to return to report for duty as soon as he was able to do so. See in this regard the case of Shumba v Commercial Bank of Zimbabwe Limited HH 100-06.

In the result I agree with the appellant that the arbitrator grossly misdirected himself by making a decision in favour of the respondent in the circumstances of this case.

Accordingly, the appeal succeeds with costs.

Matsikidze & Muchenje, appellant’s legal practitioner