Lebias Jeche v Victoria Foods

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/03/13
HELD AT HARARE ON 22nd October, 2012
CASE NO.LC/H/786/11
In the matter between:
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THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO.LC/H/03/13

HELD AT HARARE ON 22nd October, 2012      CASE NO.LC/H/786/11

In the matter between:

LEBIAS JECHE				Appellant

And

VICTORIA FOODS			Respondent

Before The Honourable G. Mhuri, Senior President

For Appellant  : Mr Maponga (General Secretary UFAWU)

For Respondent : Ms C. Maphosa (Legal Practitioner)

MHURI G,:

This is an appeal against an arbitration award. The terms of reference to the Arbitrator were whether:-

the Appellant’s dismissal was unlawful

and

the employer calculated the leave days wrongly

After considering Section 12 B(3)(b) of the Labour Act (CAP 28:01) and the parties contract of employment, the Arbitrator made the conclusion that Appellant’s claim was without merit. The findings were that:-

the Appellant’s contract of employment clearly spelt out that at the end of the contract no expectation of re-engagement was to be made.

the Appellant did not state exactly who was engaged in his place

Respondent managed to show that Appellant was not prejudiced.

Appellant’s submissions were that he was in Respondent’s employment for a period of seven (7) years on a one month fixed term contract renewable every month (8th July 2004) to 30th March 2011).  He submitted that in terms of Section 12B(3) he was unfairly dismissed as he had a legitimate expectation of being re-engaged and that somebody else was engaged instead of him.

He also submitted that in view of the length of service, he was not given the required period of notice as stipulated in Section 12 of the Act.

The undisputed factual background is that Appellant was in Respondent’s employ for an unbroken period of 7 (seven) years. Firstly as a machine minder and was promoted to be a supervisor, the position he held until the contract was terminated. He was on a one month fixed term contract which was being renewed on a monthly basis. Appellant’s contract of employment was terminated upon 24 hours notice being given by the Respondent. In the contract of employment signed by both parties, there was a clause which reads:-

7. “the contract will, upon the completion of the

time period, terminate and no expectation of being re-engaged at any time in the future should at any time be read into this contract. Termination will be automatic at the conclusion of the contract although as a common courtesy the company will endeavour to give advanced warning of their intention to terminate and not to renew .......”

It is trite that a fixed term contract comes to an end automatically at the expiry of the period for which it was set (see the case of

CHIKONYE & ANOTHER V. PETERHOUSE SCHOOL 1999 (2) ZLR 329(S).

The parties to such a contract should be aware of this position. There is no legal requirement to give a reason or notice. In casu, however, in compliance with Clause 7 of the contract Respondent gave Appellant 24 hours notice of termination. It cannot be faulted for that.

However what I find disturbing and ought to be discouraged is engaging an employee for years on end on the pretext that the engagement is on a fixed term contract. Appellant was engaged for a period of seven (7) years on terms and conditions of a monthly fixed term contract as opposed to terms and conditions of his fellow permanent employees.

I totally associate myself with the sentiments expressed by President Kachambwa in the case of

LIFESTYLE ZIMBABWE FURNISHERS V ADMIRE MAWAPO & 295 ORS LC/H/02/2012

in which he stated:-

“When we talk of ‘casualization of labour’ we are not referring to employees being on casual employment as such. The issue is that of not placing employees on permanent when the work for permanent employment is available. The employer either places the employee on short fixed term contracts or on casual contract. In the process the employer avoids responsibilities of permanent employment at the expense of the employee”

It is clear in the instant case that by engaging Appellant on a monthly fixed term contract and for 7 continuous years, Respondent was clandestinely avoiding the responsibilities that go with permanent employment such as gratuity, bonus, 3 months notice etc. To continue to renew the contracts for a continuous period of 7 years clearly showed that the work was available. To that end, I am persuaded by Appellant’s submission that at the end of the contract in March he had a legitimate expectation of being re-engaged as this had been the practice for the past seven years despite Clause 7 in the contract to the effect that no expectation of being re-engaged should be read into the contract.

Where however Appellant failed in his submission on the unfair dismissal in terms of Section 12B(3) was on the proof that another person was engaged in his place. In his closing submissions and statement of claim to the Arbitrator, Appellant only made a bare averment to the effect that the Respondent violated subsection two of the same section by dismissing the applicant without applying any law and replace him with another person. He did not provide proof or more details on this. He repeated this bare averment in his written submission to this Court. He stated,

“the position he was holding was replaced by one who was said to be a permanent employee”.

This is not enough in my view. In that regard I do not find fault in the Arbitrator’s finding that Appellant did not state exactly who was engaged in his place. I therefore uphold that Appellant was not unfairly dismissed as stipulated in Section 12B(3) of the Act.

A reading of Appellant’s papers shows that he is aggrieved by the failure to pay him gratuity when those permanent employees who will have worked for a period of up to 4 years are paid gratuity in terms of the Collective Bargaining Agreement and the failure to give him or pay cash in lieu of 3 months notice since he had worked for 7 continuous years. As alluded to earlier, Respondent engaged Appellant on a monthly fixed term contract renewed every month for 7 years to avoid responsibilities that go with permanent employment. In order to put a stop to this practice by employers, I will grant Appellant the relief that he is seeking namely 3 months cash in lieu of notice and gratuity for 7 years calculated as follows:-

3 months cash in lieu of notice

@ $231.19 per month 			= $693.57

Gratuity 7 years

$231.19 x 17% X 7 years 		= $275.10

Total 							= $968.67

Accordingly it is ordered that Respondent pays Appellant a total sum of $968.67 plus interest at the prescribed rate calculated from date of this judgement to date of final payment.

Each party is to bear its own costs.

Matsikidze & Mucheche – Respondent’s Legal Practitioners