Elizabeth Guta v OK Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO, LC/H/487/2014
HARARE, 22 JULY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE    JUDGEMENT NO, LC/H/487/2014

HARARE, 22 JULY 2014					     CASE NO. LC/H/279/14

AND 01 AUGUST 2014

In the matter between:-

ELIZABETH GUTA					-	Appellant

And

OK ZIMBABWE LIMITED			-	Respondent

Before The Honourable B.T. Chivizhe:  Judge

For Appellant	-	Mr Z. Mufanebadza (Trade Unionist)

For Respondent	-	Mrs R.T.L.  Matsika (Legal Practitioner)

CHIVIZHE, J:

The Appellant was employed by the Respondent as a canteen assistant on various fixed term contracts, the last of which terminated on the 30th of November, 2012.  The Appellant thereafter referred a complaint of an unfair labour practice based on section 12B (3) (b) of the Labour [Cap 28:01] to the Labour officer.  When the Labour officer failed to conciliate the matter was referred to compulsory arbitration.  The arbitrator after considering the evidence and submissions made before him issued an award finding that there was no basis on which a legitimate expectation of the renewal of her award could have arisen.  He also found that the other employee who had been engaged by the Respondent had not been engaged in the same position that was previously occupied by the Appellant.  On that basis the Arbitrator dismissed Appellant’s claim.  The Appellant aggrieved by the award so handed down has noted the present appeal.

Although Appellant raised several grounds of appeal the basis for noting the appeal are essentially two grounds.  Firstly that the Arbitrator grossly misdirected himself on the facts that no reasonable person would have arrived at the same decision that the Appellant had no legitimate expectation of being reengaged.  The second aspect is that the arbitrator had misdirected himself in holding that no one was engaged in the same capacity when evidence had been properly placed before the Arbitrator.

Section 12 B (3) (b) of the Labour Act provides as follows;

“if, on termination of an employment contract of fixed duration, the employee-

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

It is clear to me that in order for Appellant to succeed in this appeal she has two hurdles to overcome.  Firstly she has to establish that the Arbitrator was wrong in his finding that she had no legitimate expectation to be re-engaged by the Respondent after the termination of the last fixed term.  On this issue she submitted that based on the Respondent’s actions of continuously renewing fixed term contracts she had a legitimate expectation of being re-engaged.  The Arbitrator found that in the absence of a promise of renewal of the Appellant’s contract of employment there would be no basis for the Appellant claiming a legitimate expectation of the renewal of her contract.  The record clearly shows that Appellant did not allege that Respondent made any express promise of renewal of contract.  No evidence to prove the existence of such a promise was led.  Before the Labour Court the Appellant submitted that it was on the basis of repeated continuous renewal of her contract that she formed a legitimate expectation of re-engagement.  The point was opposed by the Respondent.

No evidence was placed before the Arbitrator or the Labour Court as to number of renewals.  Even in the absence of that information the fact that a fixed term contract has been renewed on several occasions cannot in my view create a legitimate expectation of continued contract employment.  The court has been aptly referred to the case of Care International Zimbabwe vs Tichaona Ngatiare LC/29/2009.

Assuming I am wrong however in reaching this conclusion and that the fact that Appellant’s fixed term contracts was continuously renewed did give rise to a legitimate expectation the Appellant would still need to overcome the second hurdle which is the second requirement under section 12B (3) (b) i.e. whether someone else was engaged in the Appellant’s place.

The Appellant submitted before the Arbitrator that she was employed as a canteen assistant.  She submitted that one Linnia Mabvundwe had been employed soon after termination of her contract to replace her.  The evidence tendered however showed that Linnia Mabvundwe was appointed to the position of till operator.  The Arbitrator concluded that Linnia Mabvundwe was not employed to replace Appellant.  The Appellant suggested that the Arbitrator grossly misdirected himself on the point.  The Appellant however has not placed before the court any evidence to show Linnia Mabvundwe was engaged to do the work that she previously did.  Nothing has been placed before the Court to suggest the Arbitrator grossly misdirect himself on the facts when he reached the conclusion he did.

In the circumstances the appeal being without merit clearly stands to be dismissed with no order as to costs.  It is so ordered.

WINTERTONS, Respondent’s legal practitioners