Richard Dzimba v Victoria Foods

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/318/2013
HELD IN HARARE, JULY 2, 2013
CASE
NO. LC/H/318/2013
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/318/2013

HELD IN HARARE, JULY 2, 2013			CASE NO. LC/H/120/2008

AND 25 OCTOBER, 2013

In the Matter Between

RICHARD DZIMBA					APPELLANT

And

VICTORIA FOODS				       		RESPONDENT

Before The Honourable E. Makamure : J

For The Appellant     		: Mr E. Maponga (Trade Unionist)

With him the Appellant

For The Respondent  		: Ms L. Shambamuto (Legal Practitioner)

with her Mr Mutungi

MAKAMURE J.,

This is an appeal against a decision by an arbitrator sitting at Bulawayo.  The appellant was employed by the respondent on a fixed term basis (monthly).  The operative part of the contract reads as follows:

“7. This contract will, upon the completion of the time period, terminate and no expectation of being re-engaged at any time in future should at any time be read into this contract.  Termination will be automatic at the conclusion of the contract although as a common courtesy the Company will endeavour to give advanced warning of their intention to terminate and not to renew.  Failure to do so is accepted by the Employee as no impediment to the termination of the contract upon its completion.”

It is common cause that the appellant was employed on the basis of that contract from 1 June 2003 to 30 November 2010 and the contract was renewed monthly.  When the appellant’s contract terminated in November 2010, it was not renewed.  He was aggrieved by the employer’s decision.

This resulted in the matter being arbitrated upon for:

“Alleged unfair dismissal and wrong calculation of leave in days.”

The Learned Arbitrator found no merit in the claim and dismissed it.  The appellant was aggrieved by the arbitrator’s decision.  He appealed to this Court on the following grounds:

“1. Learned Arbitrator erred in his findings that, though Mr R. Dzimba was on a    fixed term contract with Victoria Foods (Pvt) Ltd for a period of 7 (seven) years with the same employer without any break, and was not entitled to the required period of notice in terms of section 12(4a) of the Labour Act as well as gratuity in terms of the Statute of the Industry Milling Industry Subsection section 22. (sic)

2. The Learned Arbitrator over looked the frequent renewals of fixed term contract for over a period of 7 (seven years) with the same one employer.

3. We feel there’s need to look at the relationship of the parties holistically and their real intention, taking into account that employers had superior powers over workers and that casualisation of labour is against public policy.

4. The Learned Arbitrator again over looked Section 12 (b1) were it clearly state that, every employee has a right not to be unfairly dismissed because how can the employer give one day notice to a worker who had worked for that long continuously without any break and replace him with another employee.  Thus violation of the Labour Act Section 12(b3) (i-ii). (sic)

5. How can an employee like R. Dzimba who had served for that long be given one day notice of termination and not paid gratuity yet a worker who had served one to four years is paid gratuity in terms of the current CBA of the Industry Milling Industry subsector.”

It is clear from the grounds of appeal, though inelegantly worded, that the appellant is aggrieved that after working for the same employer for seven years, albeit on fixed term contracts which were renewed every month, he was dismissed firstly without any benefits and secondly when he expected to be re-engaged and thirdly he asserts that the respondent hired another person on a permanent basis in his stead. What seems to have created the expectation to be re-engaged is the fact that he had worked for the respondent for a long time and it must have become routine for him to sign a new contract every month.

The contract document is clear, and states that no notice period was required at the expiration of the contract. It is trite that by its nature a fixed term contract expires with the affluxion of time. (See Chikonye & Another v Peterhouse School 1999(2) ZLR 320(S).

With respect to provisions of the Labour Act Chapter 28: 01 (The Act),  its Section 12(4) (a) provides:

(4) Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be—

(a) three months in the case of a contract without limit of time or a contract for a period of two years or more;

The appellant was engaged in terms of a contract whose terms were spelt out clearly in the contract document. The above provisions do not provide for a contract of a fixed duration. What is however worrisome is that these monthly contacts continued for a period of seven years. Section 12B (1) of The Act provides for the protection of an employee’s right not to be unfairly dismissed. Section 12B(3) then provides for what is deemed to be unfair dismissal.  The provisions read:

“An employee is deemed to have been unfairly dismissed-

(a) if, …;

(b) if, on termination of an employment contract of fixed duration, the employee-

(i) had a legitimate expectation of being re-engaged; and

(ii) another person was engaged instead of the employee.”

It appears to me that given the period which the appellant had worked for the respondent, an impression was created that the appellant would continue to be in employment. One can say that the employer by frequently renewing the employment contract inadvertently created a legitimate expectation in the mind of the employee. This satisfies subsection (i) above. What has not been proved is whether another person was engaged instead of him. The appellant has made this assertion in his grounds of appeal but he has not produced any evidence in support of the assertion. In that regard therefore he has not satisfied the provisions of the Act. (See UZ-UCSF COLLABORATIVE RESEARCH PROGRAMME IN WOMEN’S HEALTH v DAVID SHAMUYARIRA SC 10/10). While this is so, it is clear that the appellant was bound by what he signed for and it is equally clear that it is unfair for a person to be employed for a long period and then leave employment without any benefits. An employee may be taken advantage of because he needs to eke out a living.  Such an employee may agree to terms which are clearly to his disadvantage because he has no bargaining power. By this I mean that there is no way an employee on a fixed term contract can persuade his employer to put him on a contract without limit.  It  is entirely up to the employer to hire employees and employ them on such terms as best suits them. The danger which this creates is that an employee will be put on a contract of a fixed term. The employer is not obliged to do anything else apart from adhering to the terms of such contract. The employer knows that employing a person for example on a contract without limit has certain obligations to it when the parties are going their separate ways. These obligations do not attach to a contract of fixed duration.  I believe that these are the obligations which the respondent sought to avoid by continuously renewing the monthly contracts. That appears to be unfair. It amounts to casualization of labour. This is why the Legislature has tried to protect gullible workers.

This Court has stated on several occasions that employers ought not to casualize labour especially under the guise of fixed term contracts.  In the case of Lifestyle Zimbabwe Furnishers v Andrew Mawapo & 295 Others LC/H.02/2012 this Court (my brother Kachambwa P. (as he then was) stated as follows:

The issue is that of not placing employees on permanent employment when the work for permanent employment is available.  The employer either places the employee on short fixed term contracts or on casual contract.  In the process the employer avoids responsibilities of permanent employment at the expense of the employee.  This is the mischief that Parliament intended to cure by enacting the law that the parties in this case were haggling over.  Parliament came to a position that if in four months an employer is able to give work that aggregates to 6 weeks or more then there is work of a permanent nature and the employee must be deemed to be in a contract without limit of time – a permanent contract.

I respectfully associate myself with the above remarks.

In the present matter for a period of seven years the appellant was employed on a continuous basis but his employer avoided the obligations which attach to permanent employment by renewing the monthly contracts. If for a period of seven years the appellant was employed on a continuous basis, it shows that there was employment of a permanent nature. This therefore means that the respondent cannot be allowed to hide behind a contract of fixed duration. After working for the same employer for seven years one can legitimately expect that they will continue to be re-engaged.

In view of the above I find that there is merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby granted.

1. The Respondent be and is hereby ordered to reinstate the appellant to his previous position with no loss of salary or benefits with effect from the date of the wrongful dismissal.

2. In the event that reinstatement is no longer possible the Respondent be and is hereby ordered to award the Appellant the appropriate damages as agreed between the parties. Should parties fail to agree either party may approach this Court for quantification.

United Food & Allied Workers Union of Zimbabwe, Representatives for the Appellant.

Matsikidze and Mucheche, Legal Practitioners for the Respondent.