Letwin Sigauke N.O v City of Harare & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/17/2020
HARARE, 14 DECEMBER 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/17/2020

HARARE, 14 DECEMBER 2019		     	     CASE NO. LC/H/LRA/397/18

AND 24 JANUARY, 2020

In the matter between:

LETWIN SIGAUKE (Labour Officer) N.O				Applicant

CITY OF HARARE								1st Respondent

RTD BRIGADIER RICHARD TWARAITIPONE

CHINENGUNDU								2nd Respondent

Before The Honorable L. Hove, Judge:

For Applicant				In Person

For 1st Respondent			Mbidzo, Muchadehama & Makoni (Legal Practitioners)

For 2nd Respondent			J. Mambara & Partners (Legal Practitioners)

HOVE J:

The 2nd Respondent was employed by the 1st Respondent on a fixed term contract for 5 years as a public safety director.

When the parties entered into this fixed term contract, the 2nd Respondent worked for only 27.5 months and the employer terminated the contract. The agreement was that the 2nd Respondent was engaged for a fixed period of 5 years.

The 2nd Respondent alleged that he had been unlawfully terminated as his contract of employment was as per the contract of fixed duration which he had signed.

The first Respondent argued that the termination was proper since the 2nd Respondent had reached the normal retirement age, and he was lawfully retired.

The issue to be decided in this application for confirmation is whether or not the  1st respondent acted within the confines of the law when he retired the 2nd Respondent.

The applicant found that the termination of the 2nd respondent’s contract of a fixed duration was unlawful in circumstances where the parties had agreed on a fixed term contract for 5 years. The 1st Respondent ought not to have terminated or retired the 2nd Respondent before the agreed period had lapsed or alternatively, if it opted to retire him, the 1st Respondent ought to have paid him his salary and benefits for the unexpired duration of the contract.

The 1st Respondent was aggrieved by the ruling and when the applicant applied for the confirmation of his ruling, it filed a notice opposing the application for confirmation on the basis that the draft ruling was not	 legally sound. First respondent argued that the applicant had mistook the facts, applied wrong principles and allowed an irrelevant or extraneous matter to guide him.

The allegation that the applicant mistook the facts of the matter was based on the submission that in terms of the applicable pension scheme, the normal retirement age was 60. The pension scheme therefore makes it mandatory to retire employees who turned 60 and it did not matter that there was an existing contract which had not

expired. The 2nd Respondent’s attainment of 60 years of age brought that contract to an end.

It was also argued by the 1st Respondent that it had lawfully terminated by giving three months’ notice.

The 1st Respondent, in heads of arguments filed on its behalf also argue that the applicant had failed to deal with the matter as a termination on notice, the employer had the common law right to terminate on notice. The 1st Respondent relied on the case of Don Nyamande & anor v Zuva Petroleum SC 43/15.

The issue however was not one where termination on notice was being challenged, the issue was could an employer enter into a fixed term contract for 5 years and terminate the contract before the fixed period had expired, and failure to pay compensation for the unexpired period of the fixed term contract.

Even assuming that the 1st Respondent was exercising its common law right to terminate on 3 months’ notice, it could only do so subject to paying the 2nd Respondent for the unexpired portion of the fixed term contract. The reason for this position is that the two parties had voluntarily agreed on the fixed term contract and they must be bound by the terms thereof.

The issue was however whether the 1st respondent could retire the 2nd Respondent on the basis of a pension scheme which stipulated 60 as the retirement age.

In Misheck Mubvumbi v City of Harare SC 64/18, the Supreme Court stated the law as follows;

“The legal position presents itself clearly to me that the Regulations of any pension fund do not fix the age at which the employee will retire from employment unless expressly or impliedly, the employer and the employee agree that this be so”.

The Learned Judge of appeal stated further as follows;

“where, therefore, the employer intends to apply the retirement age that is fixed by the pension fund for purposes of retiring employees from employment, it must import this age, with the consent on the employees into the conditions of service”.

The facts of this matter show that the parties agreed to engage each other for a 5 year fixed term contract. Nothing in that contract shows that the 1st Respondent imported the age fixed in terms of the pension fund into its contract of employment with the 2nd Respondent. The parties expressly disregarded the age of 60 set as the retirement age in terms of the pension scheme.

The provisions of the pension scheme, in view of decision of the Supreme court in the Mubvumbi v City of Harare case (supra), needed to be specifically imported into the contract for them to apply to the 2nd Respondent.

The 1st Respondent in casu agreed to retire the 2nd Respondent after the pension scheme fixed age of 60 when it contracted to employ the 2nd Respondent for 5 years in a fixed term contract well knowing that he would be past the age of 60 when his 5 year contract would terminate by effluxion of time.

The 2nd Respondent argues that the authority to retire all employees past the age of 60 only related to those employees who were on open ended contracts. He was not on an open ended contract but on a contract of fixed duration and was thus not covered by the Blanket authority granted. This has not been challenged by the 1st Respondent The facts are thus accepted as representing the truth of the matter on the basis that it was not challenged.

The 2nd Respondent also argued that he had a legitimate expectation to be employed until the expiry of his fixed term contract. The 2nd Respondent placed reliance on the cases of Metsoki v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (8) Taylor v Minister of Education & anor 1996 (2) ZLR 772(S) and other cases cited in his heads of arguments that;

“legitimate or reasonable expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which claimant can reasonably expect to continue”.

In casu, the 2nd respondent reasonably expected to serve on the basis of the agreement between the parties. I am of the view that the 2nd Respondent reasonably expected himself and the 1st Respondent to be bound by the provisions of the contract of a fixed duration for 5 years.

The law is also clear that a fixed term contract expires with the effluxion of time and if one of the parties breaches the provisions thereof, that party must pay damages for such breach which in casu is the payment for both salaries and benefits for the unexpired term of the fixed term contract.

I therefore see no basis for holding that the fixed term contract was properly terminated.

The application for confirmation of the ruling is therefore granted in the following terms:

Order:

1.	The termination of the contract is found to be unlawful.

2.	The 1st respondent, City of Harare, is hereby ordered to reinstate the 2nd Respondent, R.T. Chinengundu, into his position without loss of salary and benefits.

3.	Alternatively, if reinstatement is nolonger tenable, the 1st Respondent shall pay the second Respondent all his salary and benefits for the unexpired period of his contract of employment.

4.	The 1st Respondent will bear the 2nd Respondent’s costs and the applicant’s cost.

J. Mambara & Partners		-	Applicant’s Legal Practitioners

Messrs Mbidzo, Muchadehama & Makoni  - Respondent’s Legal Practitioners