Damo Resources (Pvt) Ltd v Killian Mandisodza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/798/2014
HARARE, 11 NOVEMBER 2014
CASE
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/798/2014

HARARE, 11 NOVEMBER 2014		           	                   CASE NO. LC/H/600/14

AND 05 DECEMBER 2014

In the matter between:-

DAMO RESOURCES (PVT) LTD					Appellant

And

KILLIAN MANDISODZA						Respondents

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr. A. Gurira (Legal Practitioner)

For Respondents		Mr. E. Hamunakwadi (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award handed down by honourable Arbitrator T.S. Makamure on 26 June 2014.

Respondent was employed by the Appellant as a chief security officer with effect from 1 July 2013.  His employment on a permanent basis was subject to a successful completion of a three month probation period.  On the expiration of the probation period Appellant was advised that he had been unsuccessful and would therefore not be confirmed in a permanent position.  His contract of employment was terminated by a letter dated 30 September 2013 which gave him fourteen (14) working days notice.

Aggrieved, Respondent filed a claim of unfair dismissal which resulted in the matter being referred to arbitration after a certificate of no settlement was issued at conciliation.  The arbitrator found in favour of Respondent and ordered that he be compensated for unfair termination of contract by payment of three months’ salary.  Appellant was aggrieved and noted this appeal on 15 July 2014.  The grounds of appeal originally five were reduced to two main points.

Whether or not Respondent was unfairly dismissed.

Whether or not the arbitrator ought to have given the option of reinstatement instead of damages.

In response Respondent stated that the appeal is a dilatory tactic by Appellant.  He further stated that most of the grounds of appeal are not on points of law.  Respondent averred that an employee on probation is entitled to natural justice, fair procedures and compensation for unfair termination of contract.  I will proceed to deal with the first issue arising from the grounds of appeal.

WHETHER OR NOT THE RESPONDENT WAS UNFAIRLY DISMISSED

The arbitrator found that the employer’s decision not to adhere to either its own disciplinary procedures or the provisions of the National Code SI 15/2006 because the Claimant was on probation is misconceived.  In his view at the end of a probationary period there shall be a review which will assess the employee’s performance and suitability.  The review outcome should be communicated to the employee and if he is to be terminated on grounds of capability he should be invited to a disciplinary hearing and be given the opportunity to make presentations.  The arbitrator stated that the employer should not take the decision to terminate until the presentation is considered and reasons to terminate given to the employee.  In his view, regardless of how the contract is drafted, natural justice and fair procedures must be afforded to the employee when terminating the probationary period.

Appellant argued that a probation contract is a form of a fixed term contract provided for in Section 12 (5) of the Labour Act [Chapter 28:01].  It further stated that the essence of a probationary appointment is that the employer retains the right not to confirm the appointment after a specified period, particularly on grounds of capability.  I agree with the Appellant’s argument.  As the initial period was fixed, it ended on the 30 April 2013.  In my view, on that day the employer had an obligation to notify the employee whether he had been successful or not.  This the employer did by advising him that the relationship was being terminated.  As Appellant was obliged to give fourteen (14) days notice of intention to terminate, it was within its rights to opt for paying cash in lieu of notice.  I therefore find that the arbitrator’s reasoning cannot be supported.  There is no basis for the award of compensation by payment of three months’ salary.  It is contrary to the contract between the parties as it stipulates that notice for the initial period is fourteen (14) working days.  I therefore find that Respondent was not dismissed unfairly.

Having found that Respondent’s dismissal was proper, I find it not necessary to consider whether or not the arbitrator out to have given the option of reinstatement instead of damages.  Accordingly the appeal succeeds.

Wherefore it is ordered that the appeal be and is hereby allowed with costs.

The arbitral award by honourable Makamure dated 26 June 201 be and is hereby set aside and substituted with the following,

“The claim be and is hereby dismissed for lack of merit.”

MAHUNI & MUTATU, Appellant’s legal practitioners

HAMUNAKWADI, NYANDORO & NYAMBUYA, Respondent’s legal practitioners