Phyllis Msasanure v SOS Children's Village Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO C/H/691/2014
HARARE, 29 SEPTEMBER 2014
CASE NO C/H/691/2014
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO C/H/691/2014

HARARE, 29 SEPTEMBER 2014 &		    CASE NO C/H/735/2013

10 OCTOBER 2014

In the matter between

PHYLISS MSASANURE						APPELLANT

Versus

SOS CHILDREN’S VILLAGE ZIMBABWE			RESPONDENT

Before The Honourable Chivizhe :  Judge

For the Appellant       R Mukozho  (Legal Practitioner)

For the Respondent   Ms D Muza (HR Manager)

CHIVIZHE J:

The present appeal was noted against an arbitral award handed down on 8 August, 2013.

The appellant was employed by the respondent. She was engaged on the 1 June 2007 on the basis of a fixed five year contract which was renewable annually. The contract was due to terminate in December, 2012. In 2008 however due to economic and financial constraints the respondent decided to vary the employment contract from five year contract to a short term contract i.e one year fixed term which was renewable at respondent instance.

In December 2010 at the expiry of the second one year fixed term contract the respondent terminated the contract. There was no renewal or extension of the contract.

The appellant was aggrieved and lodged a complaint of unfair dismissal to the Labour Officer on the basis firstly of unfair and unlawful variation of the terms of contract from five year fixed term contract to an one year fixed term contract and secondly, on the basis that she had a legitimate expectation of the renewal of her fixed term contract. The Labour Officer having failed to conciliate the matter the matter was referred to compulsory arbitration. The terms of reference were for the arbitrator to determine;

Whether or not the non-renewal of complaint’s contract in 2010 was unfair and constituted unfair dismissal.

The quantification of damages due to the employee, if any

What order ruling to be made as to costs

Determine the appropriate remedy.

The arbitrator after an analysis of the facts and law concluded that the appellant had not been unfairly dismissed. She consequently handed down an award in the following terms:

“AWARD

Having taken consideration of the law, facts and submissions and mitigation in this matter I make the following award:

That it be, and is hereby ordered that the claim of unfair dismissal be dismissed.

That the claim of damages is hereby dismissed.

Each party to meet its own costs of this arbitration.”

The appellant still aggrieved noted the present appeal on the basis of the following grounds of appeal:

“1.	The honourable arbitrator grossly erred at law and seriously misdirected herself in failing to appreciate and/or consider and/or give due weight to the following:

That acceptance of the variation of the five year contract to one year contract was precipitated by economic duress,

That there was a threat of evil and danger to the appellant’s economic and financial security which was of an imminent and inevitable harm which induced reasonable fear on the appellant, and

That the variation of the five year contract to one year contract was a nullity thereby rendering all subsequent one year contracts of no legal force.

2.	The honourable arbitrator also erred and misdirected herself by holding that there is no evidence that the appellant protested the variation of her fixed five year tenure when it is trite that evidence does not exist in the form of documents alone but may be used to prove that something happened.

The honourable arbitrator also grossly erred at law and seriously

misdirected herself by failing to appreciate that the appellant

had legitimate expectation of renewal of her one year contract

per the respondent’s assurance and representations when the

variation was effected.

The honourable arbitrator grossly erred and misdirected herself by dismissing the appellant’s claim of unfair dismissal when it was clear that the respondent unlawfully and wrongfully terminated the contract of employment by purporting to terminate the invalid one (1) year fixed term contract, thereby depriving the appellant of the full five year service as initially represented at the time of signature of the first one year contract.

The honourable arbitrator also erred and misdirected herself in dismissing the appellant’s claim for damages when it was clear that the appellant suffered damages as a result of the unlawful dismissal.”

I shall address the issues seriatim

Under the first ground of appeal the appellant contends that the arbitrator grossly erred in failing to give due weight to the fact that the appellant’s acceptance of the variation of her five year employment contract was induced by economic duress, in that the appellant risked losing employment should she fail to sign the contract as requested by the employer. It is appellant’s further contention that on that basis the variation of the five year contract to one year contract was clearly a nullity and all subsequent contracts were also consequently invalid.

The arbitrator in addressing this issue noted as follows:

“Subsection (3) of the Labour Act 28:01 recognises fixed term contracts. A fixed duration contract is used as a legal instrument by parties who wish to engage in an employment relationship within the framework of predictability and freedom to control the duration of their contractual relationship. It is common cause that during the time the contract to pay salary in US dollars was entered into, it was during hyperinflation period. There is no evidence to support the allegation that the claimant signed the new contract under duress. At the time of signing the contract there was no knowing that in February, 2009 the country would opt to use multicurrency. A contract on the terms of earning in multicurrency may not be construed to be less favourable at the time.”

The Arbitrator clearly dismissed the argument of economic duress submitted by the appellant before him. There was according to him no evidence to support the allegation. The finding by the Arbitrator is a factual finding. One cannot appeal against a factual finding unless one is saying that the factual finding is grossly illogical that no person properly applying his mind to the facts and issues could come to such a conclusion. In this case the Arbitrator concluded that there was no economic duress proven. The appellant had freely and voluntarily signed the contract. That finding cannot be impugned as being illogical.

On the second ground of appeal the appellant submits that the Arbitrator misdirected himself when he found that there was no evidence that the appellant did protest at the material time of signing the variation contract. The appellant submission before the arbitrator was that she protested at the material variation of the employment contract by the respondent. She had also challenged the legality of the new contract. The respondent had advised her to either sign the new contract or lose employment. The respondent position before the Arbitrator was that the appellant did not protest she signed the first contract freely and voluntarily. She also signed the consecutive contract in 2010 freely and voluntarily as she had been offered salaries in US Dollars instead of Zimbabwean Dollars. The arbitrator in his award concluded that there was no evidence to show the appellant protested at the time of signing the variation contract. Before the Labour Court the appellant raised the same argument but was again unable to produce any concrete evidence to back up her claim of having signed the variation contract under protest. In the circumstances the ground clearly cannot succeed.

The appellant under the third ground submitted that she had a legitimate expectation that the one year fixed term contracts would be renewed considering that she had been engaged initially on a five year fixed term contract she therefore expected the one year contracts to be renewed for the five year period. The arbitrator in his award after a clear analysis of the law and assessment of the facts concluded the appellant had no legitimate expectation of renewal of the last one year contract. In analysing the provisions of the Act he concluded that the two requirements under Section 12B (3) (b) were not met. The Appellant had failed to establish she had a legitimate expectation and another person was employed in her place. He referred to the UZ – UCSF Collaboration Programme in Women’s Health v David Shamunyarira SC 10-10 which is the locus classicus on the subject. The principles therein have been restated in a recent Supreme Court Judgement in Kundayi Magodora v Care International Zimbabwe SC 24-14. I am satisfied the arbitrator clearly did not err in this regard.

The next ground which is ground number four is merely repetitious of the issues raised above. The Appellant having failed to establish that she was unfairly dismissed the last ground ought to also be dismissed. It is clear on the evidence and facts in the record the appellant having freely and voluntary signed the one year term contracts, the last such contract having duly expired upon effluxion of time, the respondent having opted not to renew or extend the contract, the appellant was not unfairly dismissed. The arbitrator clearly did not err in reaching his conclusion and granting the award. The award consequently must be upheld.

It is therefore ordered as follows;

The appeal be and is hereby dismissed with costs.

The arbitral award handed down on 8 August 2012 be and is hereby upheld.

Sinyoro & Partners, appellant’s legal practitioners