National Pharmaceutical Company v Miriam Rungwende

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/87/2016
HARARE, 4 FEBRUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE       JUDGMENT NO. LC/H/87/2016

HARARE, 4 FEBRUARY 2016 			     CASE NO. LC/H/463/14

AND 19 FEBRUARY 2016

In the matter between:-

NATIONAL PHARMACEUTICAL COMPANY		-	Appellant

And

MIRIAM RUNGWENDE					-	Respondent

Before Honourable L.M. Murasi, Judge

For Appellant	-	Mr P. Nyeperayi (Legal Practitioner)

For Respondent	-	Mr T. Takaindisa (Legal Practitioner)

MURASI J:

At the conclusion of the oral submissions I allowed the appeal stating that the full reasons would follow.  The following are the reasons.

Respondent was in the employ of the appellant as a Business Development Manager on a fixed term contract.  The contract of employment was due to terminate on 31 January 2014.  The respondent alleged that she had a legitimate expectation to be re-employed and reported her matter which led to arbitration proceedings.  The arbitrator found in favour of the respondent.  The appellant is dissatisfied with the decision of the arbitrator and has approached this court for relief.

The appellant’s grounds of appeal are couched as follows:

The Honourable Arbitrator grossly erred in law when he failed to appreciate that the first two principal issues for determination which the respondent vigorously persisted upon at conciliation notwithstanding the appellant’s objection are contradictory and mutually destructive of each other thereby resulting in him making material conflicting findings which standing together renders his award grossly irregular at law.

The Honourable Arbitrator erred in law when he ruled that the respondent was unfairly dismissed notwithstanding his finding that the fixed term contract was properly terminated as the appellant was duly entitled to terminate the contract on 31 January 2014.

The Honourable Arbitrator erred in law when he failed to appreciate that legitimate expectation cannot arise where a fixed term contract is duly terminated on its expiration.

The Honourable Arbitrator grossly erred when he made a finding that the appellant failed to deny that the respondent’s contract was repeatedly renewed when the respondent never raised that issue in the first place, thereby resulting in him making a material finding in the absence of evidence supporting that aspect.

The Honourable Arbitrator grossly erred when he placed emphasis on the respondent’s purported good performance instead of redundancy as the basis of the termination of the contract of employment thereby resulting in him giving an award divorced from actual reason of termination which reason he accepted in his findings.

At the commencement of the proceedings Mr Nyeperayi for the appellant applied to tender documents emanating from a criminal trial at the Magistrates’ Court. He said he was making the application in terms of Rule 12 of the Labour Court Rules.  These documents pertained to the trial and conviction of the respondent on a charge of bribery in contravention of the section 170 (1) (b) of Criminal Law (Codification and Reform) (Chapter 9.23).  The documents show that respondent had been convicted of the charge and sentenced to perform 280 hours of community service.  Mr Takaindisa for the respondent consented to the production of these documents.  I will refer to this issue later in the judgment Mr Nyeperayi submitted that the arbitrator clearly fell into error by making the ultimate finding of an unfair dismissal when he had acknowledged that the fixed term contract had been terminated due to effluxion of time.  Mr Nyeperayi further submitted that there was no legitimate expectation on the part of the respondent and the arbitrator fell into error in ordering respondent’s reinstatement.  It was argued that this amounted to giving the respondent a contract without limit of time yet the respondent had been on a fixed term contract.    It was further argued that this was tantamount to drafting a contract of employment on behalf of the parties which was frowned upon by the law.

Mr Takaindisa for the respondent stated that he incorporated the documents filed of record on respondent’s part as being part of his submissions.  He submitted that the production of the documents try the appellant showing respondent’s conviction at the Magistrates’ Court should not be taken to mean that respondent accepted she had bribed the arbitrator.  He stated that in fact the respondent had appealed against the decision of the arbitrator.  He further submitted that respondent had a legitimate expectation of her contract being renewed.  Mr Takaindisa further stated that the respondent had been promised re-engagement and further that another person in the name of Mugaragumbo had been employed to take over her post.  He prayed for the dismissal of the appeal.

I wish to comment on the evidence produced by appellant’s Counsel at the commencement of the proceedings.  Mr Nyeperayi informed the Court that the Court should determine the appeal taking into consideration the result of the criminal trial as the award was in fact influenced by the actions of the respondent.  I should point out that it is trite that appeals are determined on the record of proceedings. The hearing at the Magistrates’ Court is not part of the proceedings that were before the arbitrator. This is what the Court is proceeding to do.

The arbitrator’s findings were that:

“Claimant was employed as Business Development Manager (Grade D4) from 1 February 2011 to 31 January 2014 after which the contract would automatically terminate.  The contract was duly terminated on 31 January 2014.  I find no issues with the termination of the contract as by its fixed nature, it was terminable on that date.  The employer was not obliged to give reasons for its termination.”

It is against this background that the resultant award is baffling to say the least.  The arbitrator then goes on to comment on respondent’s good behavior which entitled her to have the contract renewed.  This is where the arbitrator fell into error.  What he was now considering was not a legal ground for renewing the contract.  The arbitrator had already stated that the contract had expired due to effluxion of time.  The arbitrator had to consider whether the respondent had a legitimate expectation of being re-employed. The respondent did not produce evidence of having had a legitimate expectation of renewal of her fixed-term contract of employment. The respondent has made an averment that one Mugaragumbo was employed in her stead. However the facts militate against making such a finding.  The said Mugaragumbo was employed in the pharmacy department when respondent was still in the employ of the appellant.  Mugaragumbo’s qualifications were very different from those of the respondent.  The mere fact that Mugaragumbo was already in the employ of the appellant shows that he/she was not employed in her stead.

In Magodora & Others vs Care International Zimbabwe SC 24/14, Patel JA had this to say:

“The plain meaning of that provision (that is section 12B (3) (b))  is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead. These requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.”

The above observations apply with equal force to the present case.

The arbitrator went on to reinstate the respondent when he had clearly made a finding that the contract of employment had expired due to effluxion of time.  This amounted to a renewal of that contract.  To renew the contract of employment between the two parties was running counter to the intentions of those parties who had clearly made a fixed term contract which governed their employer/employee relationship.  As stated by Patel JA in the Magodora case supra:

“In principle, it is not open to the courts to re-write 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 a matter of public policy.”

The arbitrator clearly fell into error in trying to renew the contract of employment between the parties when he had in the first place acknowledged that the contract of employment had expired due to effluxion of time.

It is the Court’s view that the arbitrator’s award, in the circumstances, cannot be allowed to stand.  In conclusion the Court finds that the appeal is with merit and should be allowed.

In the result, the Court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of Honourable D. Mudzengi dated 22 May 2014 be and is hereby set aside.

Each party to bear its own costs.

Costa & Madzonga, appellant’s legal practitioners.

Mugiya & Macharaga Law Chambers, respondent’s legal practitioners.