Reckitt Benckiser Zimbabwe v Emmanuel Gweva & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/235/14
HELD AT HARARE 5TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/235/14

HELD AT HARARE 5TH MARCH 2014			CASE NO LC/H/91/11

& 11TH APRIL 2014

In the matter between:-

RECKITT BENCKISER ZIMBABWE			Appellant

And

EMMANUEL GWEVA					1st Respondent

And

COSMAS KATSANDE					2nd Respondent

And

DOUGLAS MANJONJO					3rd Respondent

Before The Honourable P Muzofa, Judge

For Appellant			S Sadomba (Legal Practitioner)

For Respondents			R Masinire (Legal Practitioner)

MUZOFA, J:

This is an appeal against an arbitral award made in favour of the respondents.

The three respondents were employed by the appellant in different capacities on fixed term contracts of one month at a time.  The contracts were continuously renewed to the extent that the first respondent worked for appellant for a period of 7 years 6 months, the second respondent worked for 1 year 3 months and the third respondent worked for 1 year 7 months.  On

30 September 2010 the three respondents were advised by the appellant orally after work not to report for duty the following day as their contracts had been terminated.  Dissatisfied by this kind of treatment the matter was referred for conciliation and eventually it went before an arbitrator.  The arbitrator made a finding in the respondents’ favour.

The appellant raised three grounds on appeal that the arbitrator fell into error.  Firstly that the successive contracts entered into by the respondents were contracts of casual employment falling within the ambit of section 12 (3) of the Labour Act.  Secondly that the respondents were permanent employees of the appellant.  Thirdly that the respondents and the appellant entered into successive fixed term contracts which terminated on the expiry of each fixed term.

I will deal with the grounds of appeal in turn

Whether the contracts between the parties were contracts of casual employment.

It was contended by the appellant that the successive contracts entered into by the respondents did not mutate fixed term contracts into contracts of casual employment.  It was submitted that the parties entered into fixed term contracts and are therefore governed by section 12 B (3) of the Labour Act [Chapter 28:01] (The Act).  The provisions of section 12 (3) it was further submitted governed casual employment.  Respondents submitted that the provisions of section 12 (3) of the Act applied to the respondents.  This was so because the subsequent renewals of the contracts led to the respondents working for the appellant for more than a total of six weeks in four consecutive months.

It is not in dispute that the respondents were on fixed term contracts of one month at a time.  It is as a result of the continuous renewal of the contracts that respondents believe the type of contracts turned into contracts for casual employment.  Counsel for the respondents submitted that the respondents’ contracts of employment fell within section 12 (3) of the Act.  That section in my view applies to a situation where the contract does not specify the duration and the proviso to that section applies to a casual worker.  The court was referred to the cases of Lifesytle Zimbabwe Furnitures v Andrew Mawapo and Others LC/H/02/12, Rachel Kadzinga and Others V Eastern Textiles (Pvt) Ltd t/a Destar Clothing LC/MC/02/07 and  Zimbabwe Bata Shoe Company v Zimbabwe Bata Workers’ Committee LC/MD/24/05 as authority that section 12 (3) of the Act applies to workers on fixed term contracts that have been renewed for a long period of time.  This court is of the view that the two forms of employment, the fixed term contract and casual employment are different.  Accordingly they are governed by different sections of the Act.  The mere reference in section 12 (3) of the Act that “Provided that a casual worker…”   In my view shows that the legislature intended that proviso

to apply to casual workers. It does not refer to workers on fixed term contracts.  Our law recognizes three forms of employment as provided in the Act, a contract without limit of time, a fixed term contract and casual employment.  The legislature intended to protect casual workers under section 12 (3) of the Act.

Considering the number of cases that the courts have to deal with on the issue of the workers on fixed term contracts, may be the legislature should consider what form of protection can be given to workers on fixed term contracts that are renewed for long periods.  As in this case the respondents were just advised not to report for duty the following day as their contracts were not going to be renewed.  This is traumatic to say the least.

The documents filed of record has samples of the contracts that were signed by the respondents.  The contracts specified the date from which each of the respondents would be engaged and the date of termination. Clearly the respondents were on fixed term contracts.  The court was not referred to any law that states that a continuous renewal of a fixed term contract turns the contract into a contract for casual work.  As such where an employee is on a contract of a fixed duration, it can successfully challenge its termination by satisfying the requirement of section 12 (B) (3) (b) of the Act.  It was not argued nor shown that the respondents had a legitimate expectation that the contracts would be renewed neither was it shown nor argued that the appellant employed some other people in the place of the respondents.  The position of the law in so far as fixed term contracts are concerned was clearly stated in UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira SC 10/10.  In view of the foregoing this ground of appeal succeeds.

Whether the respondents were permanent employees.

This ground of appeal is closely linked to the first ground of appeal.  This court has made a finding that the respondents were on fixed term contracts renewed on a monthly basis.  Therefore respondents were not permanent employees of the appellant.  This ground of appeal also succeeds.

There is no purpose in dealing with the third ground of appeal in that the first two grounds are decisive.  Accordingly the appeal must succeed and the following order is made.

The appeal be and is hereby upheld.

The arbitral award be and is hereby set aside.

There shall be no order as to costs.

Gill, Godlonton & Gerrans, appellant’s legal practitioners

J Mambara & Partners, respondents’ legal practitioners