Fungai Muchadenyika v Colcom Foods Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO.LC/H/16/2022
HARARE, 11 JANUARY 2022, AND
JUDGMENT NO. LC/H/16/2022
CASE NO. LC/H/REV/76/20
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO.LC/H/16/2022

HARARE, 11 JANUARY 2022,   AND

28 JANUARY, 2022                                          CASE NO.LC/H/REV/76/20

FUNGAI MUCHADENYIKA						Applicant

COLCOM FOODS LIMITED     		                                       Respondent

Before the Honourable G. Musariri, Judge;

For Appellant		-Mr A. Windimani, Unionist

For Respondent		-Mr T E. Gimbo, Attorney

MUSARIRI, J:

Applicant applied to this Court for the review of the termination of her employment by Respondent.  The application was made in terms of Section 92 EE of the Labour Act Chapter 28:01 (hereafter called the Act).  Respondent opposed the application.

The ground for review was summarised as follows

“1.	The Respondent erred at law when it unfairly terminated the Applicant(s)      Contract of employment on 30 November 2020 without the application of a code of conduct and the law.”

The application was supported by a founding affidavit which is 34 paragraphs long.  Most of the contents of affidavit were argumentative and repetitious.  In argument before this Court Applicant stated she was given conflicting reasons for her termination.  Firstly she was told she had worked for more than 10 years without break and was terminated for that reason.  Then she was told she was being

terminated because of non-availability of work.  She submitted that both reasons  were wrongful and unlawful.

Respondent filed an opposing affidavit.  It declaimed as followed,

“11.	I aver that the Applicant is mistaken in her belief that she was dismissed and that such termination of employment ought to have been in terms of a Code of Conduct.

12.	I admit that the Applicant’s contract was terminated by effluxion of time.  This however was not a dismissal.  It required no application of a Code of Conduct.

13.	I attach her contract as Annexture A.  It is clear that Applicant was on a fixed term contract as stipulated in clause 1 of the contract.  The contract was with effect from 1 November 2020 to 30 November 2020 (clause 2).

14.	Applicant accepted the terms of the contract offer without protest.  She is bound by the same.  One such material term is the absence of any legitimate expectation of further renewal.”

The said employment contract is filed of record.  Its clauses 1 & 2 confirm that it was a one-month contract with effect from the 1st November 2020 to the 30th November 2020.  Its clause 1 ends as follows

“ Accordingly, this renewal should not by any means create a right to or       legitimate expectation of any further renewals.”

Thus Applicant renounced any expectation of renewal.  Apparently her termination with effect from the 30th November 2020 was consistent with the employment contract.

Applicant sought to get around her apparent difficulty by reliance on the Collective Bargaining Agreement:  Food and Allied Industries dated the 13th July 2018.  The CBA provides that an employee on a fixed term contract for a continuous period of 5 years becomes a permanent employee.  For those already in employment the CBA took effect from the 1st January 2016.  Assuming Applicant was already in employment she would gain permanency upon the expiry of 5 years on the 1st

January 2021.  Alas for her she was terminated 2 months before due date.  Unfair or unfortunate thought the termination might appear, the court cannot rewrite the

parties contract(s) to excuse any of them from the consequences of the contract.  The point was well-made by Patel JA (as he then was) in the matter of  Magodora  v Care International 2014 (1) ZLR 397 where he stated that, at p.403C

“In principle it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.  This is so as a matter of public policy.”

In the circumstances I conclude that Applicant failed to substantiate her claim of an unlawful termination of employment.

Wherefore it is ordered that:

1. The application for review be and is hereby dismissed; and

2.  Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E