Marble Zinhanga v Moonlight Provident Associates (Pvt) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/11/25
CASE NO LC/H/698/22-1
HARARE, 04 NOVEMBER 2024
AND
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/11/25

HARARE, 04 NOVEMBER 2024	AND

8 JANUARY 2025

CASE NO LC/H/698/22-1

MARBLE ZINHANGA	APPELLANT

MOONLIGHT PROVIDENT	RESPONDENT ASSOCIATES (PVT) LTD

Before the Honourable G. Musariri, Judge:

For Appellant	- F. Zimanyiwa, Unionist

For Respondent	- V. Pfumvuti, Attorney

MUSARIRI, J:

Appellant appealed to this Court against a determination made by the Designated Agent of the NEC for the Funeral Industry. The appeal was made in terms of section 92D of the Labour Act Chapter 28:01 hereafter called the Act. Respondent opposed the appeal.

The grounds of appeal were triplet thus,

“1.	The Designated Agent grossly misdirected herself and erred at law and in fact when she concluded that the Respondent was right by renewing the Appellant’s probation period two (2) times after the first one expired as a branch supervisor which is contrary at law according to section 12, sub section 56.

The Designated Agent grossly misdirected herself and erred at law and in fact when she concluded that by accepting of the fixed term contract which was already expired by the Appellant was in consensus that the previous contract was merely a fixed term contract but in actual fact was a probation period which should have awarded a permanent position of a branch supervisor.

The Designated Agent grossly misdirected herself and erred at law and in fact

when she concluded that the Appellant should not be awarded vacation leave days and the outstanding salaries she worked before she was told to report at the head

office in Harare.”

On	the basis of these grounds of appeal, appellant prayed for her reinstatement by respondent without loss of salaries benefits,

In its notice of response, respondent countered as as follows

“3	Ad Para 1

The Designated Agent correctly concluded as she did that the probation contract is an independent fixed term contract. This did not emulsify into a contract  without limit of time. The Appellant was offered fixed term independent contracts which she accepted post the expiry of the fixed term contracts.

Ad Para 2

The designated agent lucidly made a finding that the Appellant by accepting the fixed term contract for acting after the probation period, she accepted that she would not be confirmed as a permanent employee.

Ad, Para 3

The designated agent correctly concluded as she did that no evidence was led to substantiate the claim for accrued days and to that end the claim was bound to

fail.”

Respondent prayed for the dismissed of the appeal.

The grounds of appeal and response thereto raise essentially 2 (two) issues which shall be dealt with ad seriatim.

Whether respondent unlawfully renewed appellant’s probation period:

The Designated Agent (DA) opined that

“It is not disputed by both parties that the claimant was initially on a probationary contract. Upon the expiry of the 3 months probation, it is not disputed that the probation was not confirmed.

The respondent proceeded to issue out a 3 months fixed term contract of employment	entitled ‘Contract Renewal.’

The claimant view such as an extension of the probation period. The contract renewal reads

‘This letter follows your contract of employment as an acting branch supervisor that expired on the 31st of May 2018.’

The letter referred to the previous probationary contract as an expired fixed term contract

and the claimant however proceeded to accept as if she was in consensus that the previous contract was merely a fixed term contract.

It is the view of this tribunal that whether it was the probationary contract of employment that was renewed twice or whether it was a mere 3 months contract that was renewed is not  of any significance.

The bone of contention could be whether the probationary contract was ever confirmed upon the expiry of the three months period. The evidence before this tribunal points to the fact that the claimant’s probation was never confirmed,”

The respondent’s letter in question read

“This letter follows your (probationary) contract of employment as an acting branch supervisor that expired on the 31st May 2018. The employer has decided to offer you another contract which is valid for three months only i.e from the 1st June 2018 to 31 August 2018.

Please note that all other conditions of employment shall remain the same and we hope	you continue to serve the company as per the required standard.”

This letter effectively offered a 3 months fixed-term contract which appellant accepted. The probation had expired. The employer had the option to either terminate the employee or offer employment on permanent or fixed-term basis. The employer chose the letter option which the employee (appellant) accepted. It is this fixed-term contract which was renewed until it terminated on the expiry of the last contract in November 2018. The Designated Agent got it right when she concluded that the probation was not renewed and appellant was not permanently employed as acting branch supervisor. Section 12(5) of the Act was not violated, contrary to appellant’s argument.

Whether the claim for leave pay was wrongly dismissed: The Designated Agent ruled that

“The claimant makes a claim for cash in lieu of 45 accrued leave days but no evidence	was adduced to substantiate the claim.

To this end, the claimant’s claims are hereby dismissed in toto.”

Despite this ruling appellant has failed to provide any proof of the unpaid leave days even in this Court, A payslip or other evidence could have clarified the position. It was incumbent upon appellant to prove her claims. Without the necessary proof, the Designated Agent ruling cannot be impeached.

Conclusion

The foregoing analysis resolves the relevant issues against appellant. Therefore her appeal stands to be dismissed as devoid of merit.

Wherefore it is ordered that;

The appeal be and is hereby dismissed: and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E