Sherry Makwiranzou v Zimbabwe Women's Resource Centre & Network

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/421/2013
HARARE, 27 MARCH, 2013
CASE NO. LC/H/470/12
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IN THE LABOUR COURT 				JUDGMENT NO. LC/H/421/2013

HARARE, 27 MARCH, 2013				    CASE NO. LC/H/470/12

AND 13 SEPTEMBER, 2013

In the matter between

SHERRY MAKWIRANZOU					-	Appellant

And

ZIMBABWE WOMEN’S RESOURCE				-	Respondent CENTRE & NETWORK

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr. R. Matsikidze – Legal Practitioner

For Respondent	-	Mr. T.K. Hove       – Legal Practitioner

CHIVIZHE, B.T.:

The matter was placed before me as appeal against an arbitral award handed down on 22nd of June, 2012.  When the parties appeared before me on 27 March 2013 the parties agreed to postpone the matter sine die in order for Respondent to file Supplementary Heads of Argument based on the application by Appellant to amend her notice of appeal.  The court would thereafter consider the matter on the basis of the written submissions and hand down judgment.  Both parties having filed their written submissions and upon consideration of the same, the following is my judgment.

The Appellant was employed by the Respondent as Finance and Administration Manager.  She was employed on the basis of a 1 (one) year fixed contract for 5 (five) years.  On the 19th of October, 2011 same was advised that the contract of employment was expiring on 31 October, 2011 and it would not be renewed.  She was further advised that she was to be assessed to determine “feasibility of any other of contract renewal.  If confirming renewal, the employer will communicate this in writing”.

On the 14th of October, 2011 the Respondent’s board resolved not to renew Appellant’s contract employment. A performance appraisal was however done by Respondent’s Director on 18th of October, 2011 after the termination/expiry of the contract.

The matter was referred to conciliation and upon failure to settle the matter was then referred to compulsory arbitration.

The terms of reference before the Arbitrator were for him;

to determine whether or not the claimant was unfairly dismissed.

to determine whether or not the Respondent had committed an unfair labour practice.

whether or not the claimant is entitled to the laptop? If so, to determine the appropriate remedy, if any.

The Arbitrator handed down an award against the Appellant based on his finding that the Appellant had not discharged the onus of proving the requirements of Section 12 B (3)(b) of the Labour Act [Chapter 28:01] which require proof, firstly, of the existence of a legitimate expectation, and secondly, that another employee had been engaged in the position of the Appellant.  The Arbitral award in its operative part reads;

Claimant was not unfairly dismissed.  Her fixed term of contract was terminated in the normal way.

Respondent did not commit an unfair labour practice i.e. “no casualization of Labour.”

Claimant should return the laptop together with the intellectual property therein within 30 days of this award.

Dissatisfied with the award the Appellant has noted the present appeal which is premised on the following grounds of appeal;

The Learned Arbitrator erred at law in confining the doctrine of legitimate expectation in renewal of fixed contracts to Section 12 (B) 3 (b) of the Labour Act (28:01) when clearly at common law the doctrine requires circumstantial evidence to be heard as opposed to an inquiry of whether another person was re-engaged.

The Learned Arbitrator erred at law in making a finding that the Appellant failed to prove that there was no one  who was re-engaged and therefore there is no legitimate expectation, when clearly at law and in fact:-

The provisions of Section 12 (B) (3) (b) (ii) of the Labour Act (28:01 are not capable of implementation by the affected employee in that reasonably such evidence that someone was employed instead is not practically obtainable and therefore it’s a law that is dead or

That interpretation of Section 12 (B) 3 (b) (ii) of the Labour Act (28:01) is contrary to the purposive interpretation enshrined in Section 2A of the Labour Act, in that it ignores the other indicators to establish legitimate expectation for renewal of a fixed term contract.

The Learned Arbitrator grossly erred factually a misdirection that amounts to a point of law; in that:

He ignored a clear fact that in terms of approved and funded budgets of the Respondent, the Appellant’s salaries had been budgeted for even up to 2015.

He ignored a clear fact that the Appellant’s position remained core, essential and her services would always be needed as per donor policy and organizational structure.

He ignored a fact that the only basis the Appellant would not be renewed was that of poor performance and in this case her performance was beyond reproach.

He ignored a fact that the reason why her contract was not renewed was that the employer had restructured and not that her work or funding to fund her position was no longer there, a reason further that is not tenable in terms of termination clause of her employment contract or the law as the law requires such to be considered as retrenchment.

He ignored a fact that the Respondent Board resolved not to review Claimant’s contract on 14th October 2011, yet the performance assessment was done by the Respondent’s Director on 18th October 2011 and gave 7.2 out of 10% a fact that confirms existence of a legitimate expectation.

The Learned Arbitrator erred at law in not finding that the existence of the legitimate expectation or renewal of the employment contract was present in this case and consequently the dismissal was unfair.

The Appellant has filed an Application for Amendment to Notice of Appeal.  The amendment sought by the Appellant is through an additional ground of appeal ground 2(c) which reads as follows;

“2.  (c) The Appellant’s post was advertised as a vacancy, in other

Respondent employed another person or intends to employ another person instead of the Appellant contrary to provisions of Section 12 B of the Labour Act (28:01).  See Annexure “A”.

The application is accompanied by an attachment in the form of Annexure “A” which is an advertisement flighted in a local newspaper for a position of Accountant; Local NGO.  For interviews the deadline is given as 16 October 2012.  The advertisement indicates specific duties, qualifications and skills of the person required.  An address to send one’s CV is also given.

The Respondent objects to the amendment of the Appellant’s notice of appeal on the following basis;

(a)	In the amendment Appellant seeks to introduce fresh evidence which was not before the Arbitrator.  In the same argument appeals before the Labour Court are appeals on the record.

(b)	The advertisement relates to a different post to the one the Appellant had.  Appellant position was engaged as Finance and Administration Manager whereas advert relates to the post of Accountant advertised in October 2012 a year after Appellant’s contract terminated by effective of time.

(c)	The Appellant is seeking to introduce factual issues whereas appeals against Arbitral award have to be in point of law.  Ground of appeal does not raise point of law.

The Appellant has in replication submitted in her Supplementary Heads of Argument as follows.

(a)	No fresh evidence is being introduced.  The issue as to whether or not the Respondent engaged another person in place of Appellant was central to the issue before the Arbitrator and is now before the Labour Court.

(b)	On the basis of Rule 26(1)(a) of the Labour Court Rules the court can authorize a departure from the Rules of Court.  In the interest of justice, fairness and equity.  Under Section 90(A) of the Labour Act [Chapter 28:01] Labour Court is not bound by strict rules of evidence.  Under Rule 12(2) the court is also entitled to deal with a matter most suitable for clarification of issues.

(c)	Appeals before the Labour Court are appeals in the wide sense and are regarded as special kind of appeal (The Court was referred to the relative authorities to support both propositions.)

It is clear that in seeking to amend the notice of appeal the Appellant intends to also introduce fresh evidence that was not otherwise placed before the court a quo. The evidence is in the form of the advertisement attached as Annex ‘A’ to Appellant’s papers. Section 89 (5) [Cap 28:01] as read with Section 90 (A) of the Labour Act thereof gives the Labour Court discretion to hear and receive additional fresh evidence at appeal stage.  The Act however does not explicitly, indicate how such discretion may be exercised.  In the Labour Court decision Thomas Njerere N.O. vs Africa University LC/MC/17/2005 the court laid down factors that may be considered by the Court.  Referring to the Supreme Court decision in Warrant – Godringham vs Tarsyth Trust 2000 (2) ZLR 377(S) the criteria was laid down to be as follows;

Could the evidence have, with reasonable diligence, been obtained in time for the trial.

Is the evidence apparently credible?

Would it probably have an important influence on the result of the case although it need not be decisive.

Have conditions changed since the trial so that fresh evidence would prejudice the opposite party.

Applying the criteria outlined above, there is no doubt the application to amend the notice of appeal cannot succeed.  Although there is no affidavit or statement from messrs Matsikidze & Mucheche to explain why evidence sought to be adduced on appeal was not placed before the court a quo the court can only surmise it is because the evidence was not existing at the time.  It is clear that the advertisement was flighted in October 2012 whereas the Appellant’s contract of employment terminated on 31st October 2011 a year earlier.  The parties according to the record appeared before the Arbitrator on 22 June 2012.  Clearly the evidence could not have been obtained in time for the hearing before the Arbitrator as it did not exist then.

The next issue is whether the evidence is credible.  The Respondent has raised the issue that the Appellant was employed as a Finance and Administration Manager whereas the post that was advertised relates to a different position of Accountant.  In addition the Respondent has raised the issue that the advertisement was flighted in October 2012 whilst the Appellant’s contract expired by effluxion of time in October 2011.  There is therefore a period of over twelve months in between therefore the advert could not have related to the same position occupied.  For that reason the Court was urged to disregard the evidence.

The Appellant’s position is that the evidence is credible.  In the Court’s bid to determine the question as to whether or not the Appellant had a legitimate expectation of her contract being reviewed and whether or not another person was engaged instead of the Appellant the court would necessarily need to consider the evidence which is being introduced to show that the Respondent indeed engaged another person in place of the Appellant.  It is Appellant’s position that although the advertisement relates to the position of Accountant it actually relates to Appellant’s position of Finance and Administrator Manager and that the person engaged by the Respondent is actually doing Appellant’s work.

The evidence sought to be introduced cannot be considered credible.  Firstly, the advertisement relates to a different position to the one previously occupied by the Appellant.  The advertisement relates to an Accountant whereas the Appellant’s opposition was a Finance and Administrator Manager.  The Appellant would have needed to produce further evidence to prove that in that it was the same position.  In the absence of that evidence the Court cannot safely conclude that it was the same position.  Secondly, the advertisement was flighted a year after the Appellant’s contract terminated.  The Appellant appears to be building her case as she goes.  There has to be finality in litigation.  If the Appellant were to be allowed to present the evidence on appeal at this stage that would set a bad precedent and there might be no end to the litigation.

The next issue is whether the evidence would have an importance influence on the result of the case. The Arbitrator in his award came to the conclusion that the Appellant had failed to discharge the onus on her to prove that another person was employed.  That factual finding by the Arbitrator was based on the evidence before the Arbitrator then.  Having already concluded that the evidence is not credible the court shall not consider what effect the evidence would have if admitted.  It would also be unfair on the Respondent party to allow the introduction of this evidence which evidence was not before the Arbitrator at the material time of hearing.  The Respondent before Arbitrator had indicated that the Appellant position had been abolished.  The Respondent would clearly stand to be prejudiced were the court to allow the leading of the fresh evidence given the changed circumstance at Respondent’s place of work.

The application for amendment of notice of appeal clearly cannot succeed on the basis that it would result in leading of fresh evidence potentially prejudicial to the Respondent.

Accordingly it is ordered that

The application to amend the notice of appeal is hereby dismissed; and

Each party shall pay its own costs.

Matsikizde & Mucheche – Appellant’s Legal Practitioners

T.K. Hove & Partners – Respondent’s Legal Practitioners