Darlington Matema & Tinashe Denhere v Buildcom (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO LC/H/196/24
ZIMBABWE HARARE 25 MARCH 2024 &
CASE NO LC/H/643/23
29 APRIL 2024
DARLINGTON MATEMA
1st APPELLANT
TINASHE DENHERE
2nd APPELLANT
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IN THE LABOUR COURT OF JUDGMENT NO LC/H/196/24

ZIMBABWE HARARE 25 MARCH 2024 & CASE NO LC/H/643/23

29 APRIL 2024

DARLINGTON MATEMA 1st APPELLANT

TINASHE DENHERE 2nd APPELLANT

BUILDCOM (PVT) LTD RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellants - Ms N. Matongwana, Unionist

For Respondent - Mr T. Danana, Attorney

MUSARIRI, J:

On 17 July 2023 at Harare Designated Agent (DA) C Tanyanyiwa issued a determination. She dismissed appellants’ claims of unlawful dismissal from employment by respondent. Appellants then appealed the determination to this Court in terms of Section 92D of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the appeal. The grounds of appeal were six-fold as follows,

“1. The DA erred at law by failing to consider that 1st applicant was not on a fixed contract and he did not confirm that he was on a fixed contract.
2. The DA erred in failing to consider that respondent failed to prove that 1st applicant was on fixed term contract.
3. The DA erred in failing to consider that applicants substantiated their claims of under payment of wages.
4. The DA failed to consider that there is no doctors’ report which stated that 1st applicant was fit to work as of December 25, 2022.
5. The DA failed to consider that a pledge by the respondent was not fulfilling its obligation to sign NSSA forms.
6. The DA failed to consider that there was a dispute on how the 2nd applicant’s contract of employment terminated hence approaching NEC for relief.”


The issues raised in the grounds of appeal shall be dealt with in turn.

A. Whether $1^{st}$ appellant (Matema) was on a fixed term contract:

In her “Analysis” the DA opined thus

“The $1^{st}$ Claimant confirmed that the contract of employment that he was on expired at the end of July 2022 but before the expiry of the contract he got injured. It is not clear why the $1^{st}$ Claimant feels entitled to be an employee of the Respondent after the expiry of his contract of employment in July 2022. His contract of employment was very clear that it was due to expire at the end of July but the Respondent continued to pay him because he got injured whilst he was on duty …In the case of the $1^{st}$ Claimant nothing suggests that there was an extension of the contract of employment but the fact that the Respondent was generous enough to continue giving him salary does not automatically suggest that he had become an employee again this time without a contract of employment.”

$1^{st}$ Applicant relied on respondent’s letter to him dated 18 December 2022 which read,

“Ref: Notice to resume work duties
Reference is made to the doctor’s certificate/letter certifying you fit for duty as of 25 December 2022. As such, you are now required to report to work on the $1^{st}$ January 2023 failure to report, the employer gives you notice in terms of Section 14 subsection (4) of the Labour Act Chapter 28:01.
This notice shall lapse on the $1^{st}$ February 2023, in the event, in the event you fail to give reasons as to why the employer should not act in terms of Section 14 (4) of the Labour Act.”

This letter is not discussed in the DA’s analysis. However, its contents show that the employment was extended at least to the $1^{st}$ February 2023. It may have extended beyond that date. The fact was not interrogated. Same applies to respondent’s claim that invoked section 14(4) of the Act. It was necessary to establish whether $1^{st}$ appellant was on paid or unpaid leave and the date he reported for duty.

B. Whether $2^{nd}$ appellant’s (Denhere) employment was unlawfully terminated:

The DA opined thus

“It is not disputed that the $2^{nd}$ Claimant first signed a contract of employment in March 2022. It is not clear how the contract of employment was terminated. However, in January 2023 he signed another fixed term contract of employment which was valid for 3 months. At the expiry of the contract of employment respondent did not renew the contract. The fact that the $2^{nd}$ Claimant signed this new contract of employment clearly shows that he was entering a new relationship with the employer.”

The contract is filed of record. Clause 1 (one) therefore indicated that the contract commenced on 3 January 2023. Clause 5 provided for a probation of 2 weeks. No other clause speaks to the end date of the contract. This is the contract provided by the respondent as the employer. The document does not prove respondent’s position that it was a fixed term contract. Neither does it support the DA’s finding that this was a fixed term contract. Rather it supports $2^{nd}$ applicant’s argument that he was on a contract without limit of time. Therefore his termination in April 2023 was unlawful because the employer was unable to show that the employee was terminated in terms of employment code as required by Section 12B(2) of the Act.

C. Whether the both appellants were underpaid:

According to appellants they were paid at the rates of US$180.00 and US$200.00 respectively instead of US$210.00 per month for their grade. The DA did not note their positions and grades. Neither did she cite the CBA setting out the minimum wages. It is therefore difficult to see why she concluded that they were not underpaid. She did not even deal with the issue of their terminal benefits.

CONCLUSION

In light of the foregoing analysis, it is clear that DA’s determination cannot stand. The matter shall be remitted back to the DA to deal with the outstanding issues.


Wherefore it is ordered that

1. The appeal be and is hereby allowed;

2. The determination by Designated Agent C. Tanyanyiwa dated 17 July 2023 is set aside; and

3. The matter is remitted back to the Designated Agent for re-hearing in light of the comments in this Judgement.

G MUSARIRI
J-U-D-G-E
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