Stanley Takaendesa v Schweppes Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/533/14
HELD AT HARARE 31ST JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/533/14

HELD AT HARARE 31ST JULY  2014			CASE NO LC/H/850/12

& 15TH AUGUST 2014

In the matter between:-

STANLEY TAKAENDESA					Appellant

And

SCHWEPPES ZIMBABWE					Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		R.T. Masomera (Trade Unionist)

For Respondent		Advocate T Mpofu

MAXWELL, J:

This is an application for leave to appeal to the Supreme Court against the decision of this Court handed down on 28 February 2014.  At the hearing of the matter I dismissed the application with costs and indicated that reasons would follow.  These are they

Applicant was employed by respondent on successive one month contracts for the period 9 November 2009 to 12/10.  On 4 January applicant entered into an employment contract with Lorimark (Pvt) Ltd and the contract was terminated on 4 February 2011 on allegations of misconduct.  Applicant alleged unfair dismissal and referred the matter for resolution.  Honourable Arbitrator Matsikidze ruled that respondent was applicant’s employer, not Lorimark (Pvt) Ltd.  The issue of unfair dismissal was dealt with by Honourable Arbitrator Mutsinze who ruled that at the time of the termination of contract in February 2011.  Applicant’s contract was without limit of time and by virtue of section 12 (3) of the Labour Act [Chapter 28:01] had graduated to a permanent status.  She found that the contract had been terminated unlawfully and ordered applicant’s reinstatement without loss of pay and benefits with effect from 4 February 2011.  If reinstatement is no longer an option, damages in lieu of reinstatement should be paid over and above back pay.  In the event that parties failed to agree on the quantum, they were to approach the arbitrator for quantification.  On 3 June 2013 the arbitrator quantified the damages as $8 371.00.

On 25 October 2012 respondent appealed against the award that had been rendered on 8 October 2012.  The main challenge was the finding that there was an employer – employee relationship between the parties.  on 16 June 2013 the applicant appealed against the quantification of the damages.  On 26 June 2013 respondent cross – appealed on the basis that the award had been suspended by the noting of the appeal and therefore the arbitrator ought not to have proceeded with quantification.  The cross appeal also attacked the arbitrator for making findings of fact on a trial cause without calling for and hearing evidence on the issues.

On 30 October 2013 an application for the consolidation of the matters was granted.  The consolidated matters were argued on 27 January 2014.  I upheld the appeal against the finding that there was an employer – employee relationship between the parties.  I dismissed the appeal by applicant and the cross appeal with no order as to costs.

On 13 March 2014 applicant filed this application.  The draft notice of appeal reveals that the issue in contention is this court’s finding that the applicant’s contract was a fixed term contract and had not graduated to a contract without limit of time as at 31 December 2010.   Further that as the contract had expired on 31 December 2010 there was no longer any

employer – employee  relationship between the parties thereafter.  Respondent  opposed the application and pointed out that it was an abuse of the Court as there are no prospects of success at all.  Applicant did not dispute that he had signed a letter of termination of employment, received his terminal benefits and further proceeded to sign a new contract with Lorimark (Pvt) Ltd.

Applicant’s argument is that this court should have agreed with the arbitrator that as of 31 October 2012 his contract had graduated into one without limit of time.  He was of the view that since this court has previously held against casualization of labour his case fitted in that category.  Applicant however did not address the issue of the termination of contract with the respondent and the signing of a new contract with Lorimark (Pvt) Ltd.  According to his submission the termination of the contract on 31 December 2010, the signing of the letter of termination, the acceptance of terminal benefits and the signing of the new contract with Lorimark on 4 January 2011 are all inconsequential as his contract had graduated to one without limit of time.  I am convinced that the Superior Court will interpret the scenario differently from what is contained in the judgment of this court.

Applicant seemed to suggest that by operation of law, even though he had agreed to the termination of his contract and received terminal benefits, he still remained permanently employed.  In his view the termination of the fixed term contract on 31 December 2010 was rendered null and void by the fact that the contract had graduated into one without limit of time.  This is despite his acceptance of the position stated in the case of UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira SC-10-10 that no amount of renewal will alter a fixed term contract into a permanent one.  Such an argument is without legal basis and I do not see any possibility of the Supreme Court finding otherwise.

The application is without merit and therefore fails.  Accordingly I dismissed it with costs.