L. Tembo v William Bain

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/767/2014
HARARE, 27 OCTOBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/767/2014

HARARE, 27 OCTOBER 2014		     		   CASE NO. LC/H/712/12

AND 21 NOVEMBER 2014

In the matter between:-

L. TEMBO						Appellant

And

WILLIAM BAIN					Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr. B. Makururu (Legal Practitioner)

For Respondent		Mr. G. Chingoma (Legal Practitioner)

CHIDZIVA, J:

This is an appeal against the Arbitral Award which was handed down by Honourable Arbitrator Mr. T.C. Nyamatore on 16 August 2012.  The award stated as follows;

“I therefore award that the case be dismissed as it is without any costs to either party.”

The brief facts of the matter are that the Appellant was employed on a fixed term contract of (8) eight weeks at a time.  These contracts were renewed several times from 23 April 2009 to 31 May 2011.  The contracts however had no provision for renewal.  On 31 May 2011 the contract had no provision for renewal.  The Appellant then approached the Designated Agent claiming that he had been unfairly dismissed since he had become a permanent employee.  The parties failed to settle the matter at conciliation and the matter went for arbitration.  It is then this arbitral decision that Appellant is appealing against.

The grounds of appeal are that;

(1)The Arbitrator grossly erred in failing to note that there was casualisation of labour.

The Appellant therefore prayed that;

The Arbitral decision be set aside.

Refer back the matter to the body, person or authority concerned for further consideration.

Order the company to comply with the quantification annexed as B or alternatively to make any necessary changes to the annexed quantification.

The Respondent in Response prayed for the dismissal of the appeal stating that the Appellant was signing contracts which stated period of engagement.

The issue to be decided in this case is;

Whether there was any casualisation of labour.

Section 12 (3) of the Labour Act [Cap 28:01] states that

“Provided that a casual worker shall be deemed to have become an employee on a contract without limit  of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months”

In the case of Lifestyle Zimbabwe Furnishers vs Andrew Mawapo and 295 ORS LC/H/02/12 KACHAMBWA J described casual labour as

“When we talk of casualisation of labour we are not referring to employees being placed on casual employment as such.  The issue is that of not placing employees on permanent employment when the work for permanent employment is available.  The employer either places the employee on short fixed term contract.  In the process the employer avoids responsibilities of permanent employment at the expense of the employee.  This is the mischief that parliament intended to cure by enacting the law that the parties were haggling over.  Parliament came to a position that if in four months an employer is able to provide work that aggregates to 6 weeks or more then there is work of a permanent nature and the employee must be deemed to be in a contract without limit of time- a permanent contract.  This is the essence of the discussion in the extract from parliament that was cited by the arbitrator.  That is the point.  The principles in the Bata Shoe case apply (LC/MD/24/95)”

Section 12 (2) (b) of the Labour Act [Cap 28:01] states that

“An employer shall, upon engagement of an employee inform the employer in writing of the following particulars (b) the period of time, if limited, for which the employee is engaged.”

It clearly shows that an employer should inform an employee of the period of employment when the employee is engaged.

Section 12 (3) of the Labour Act further states that

“A contract of employment that does not specify its duration or dates of termination, other than a contract for casual work or seasonal work or for the performance of some specific service shall be deemed to be a contract without limit of time.”

The Section clearly states that a contract should specify its duration.  Thus the contracts that the Appellant signed were of a fixed duration as provided for by the law.

Section 12 (3) of the Labour Act further provides that;

“Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.”

This Section also shows that it is only a casual worker who is deemed to be an employee on a contract without limit of time if he is engaged for longer than six (6) weeks in any four consecutive months by one employer.

The Appellant in this case was not a casual employee.  He was on a fixed term contract.  He signed contracts which stated the period of employment.

The Respondent’s action in this case did not amount to any casualisation of labour.  Appellant agreed with the time limit given in the fixed contracts.  The contracts ended at the fixed date of expiry and that was that.  He was not a casual employee.  It was up to him to refuse or accept the renewal of the fixed term of contract.

In the circumstances therefore the Appellant was not unfairly dismissed.  He was an employee on a fixed term contract.  The failure to renew the contract by the Respondent is not casualisation of labour.

In the circumstances therefore,

IT IS HEREBY ORDERED THAT

The appeal be and is hereby dismissed with costs.

MUSONI MASASIRE LAW CHAMBERS, Appellant’s legal practitioners

DUBE, MANIKAI & HWACHA, Respondent’s legal practitioners