Tafadzwa S Sakarombe v Kingfisher Auto Motors t/a Grand Auto Body Shop

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/697/2016
HARARE, 8 JULY 2016 &
CASE NO LC/H/LRA/11/2016
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/697/2016

HARARE, 8 JULY 2016 &			 		 CASE NO LC/H/LRA/11/2016

4 NOVEMBER 2016

In the matter between

TAFADZWA M SAKAROMBE						APPLICANT

Versus

KINGFISHER AUTO MOTORS						RESPONDENT

t/a GRAND AUTO BODY SHOP

Before the Honourable Mhuri & Kudya JJ

The Applicant in Person

For the Respondent	G Mharapara (Legal Practitioner)

KUDYA J:

On 8 July 2016 this Court through an ex tempore judgment filed of record granted the ruling and order made by the applicant in a case pitting Joseph Chatara and King Fisher Auto Motors t/a Grand Auto Body Shop.

On 29 July 2016 Chatara’s lawyers wrote to the Labour Court requesting reasons for the ruling. Hereunder is the full judgment as requested.

This is the return day of an application for the granting of a ruling made by the applicant on 12 January 2016 in the matter between Joseph Chatara and Kingfisher Auto Motors t/a Grand Auto Body Shop.

Joseph was in the respondent’s employ on 6 months’ probation from 19 February 2015. At the end of the six month period the respondent did not either confirm or not confirm  his position as required in paragraph 2 of their contract of employment. As such he worked for a further two and half months until 28 October 2015 when the respondent wrote a letter terminating his employment. It is as a result of the termination of his contract of employment that he approached the labour officer alleging unlawful dismissal.

The applicant conducted a hearing into the matter and issued a ruling which is subject of these proceedings. From the applicant’s analysis of the parties submissions to the action the applicant seems to have found that Joseph had become a permanent employee hence her ruling that he be reinstated to his original position without loss of salary and benefits or that he be paid nine months’ salary as damages in lieu of reinstatement and cash in lieu of leave $US2 812-50. The total amount to be paid was $36 562-50.

In considering whether to grant or not grant this ruling the court has to consider the effect of extending the probation period on the status of an employee such as the one in casu. The court is in agreement with the principles set out in paragraphs B and C of the respondent’s heads of argument in the cases of Kazembe v Adult Literary Organisation 2000 (2) ZLR 126 and Gumbo v Air Zimbabwe (Pvt) Ltd 2000 (2) ZLR 126 (H).

In our view the extension of the employment period by two and half months amounted to tacit relocation of the same terms and conditions of the initial probation period. We are not persuaded by the applicant’s argument that the instant case is distinguishable from the Kazembe and Gumbo (supra) cases. The principles remain the same despite the differences in the periods concerned. The claimant therefore remained on probation until 28 October 2015 when his contract was terminated for poor performance.

It is immaterial that poor performance is an act of misconduct in terms of the model code. The applicant’s ruling to that end was therefore without legal foundation.

In coming up with her ruling the applicant also considered section 12 (5) of the Labour Act which provide for a period of three months non-renewable as probation. The parties in their contract of employment however agreed to six months’ probation. Such an agreement contravened section 12 (5) of the Act, but the law is clear that where parties contract in breach of the law none of them should benefit from that breach. In the instant case the Joseph should not be allowed to benefit from this unlawful agreement which he entered into his own free will.

Having made the above findings the ruling on reinstatement and the alternative of damages cannot be confirmed.

As regards cash in lieu of leave the respondent has not contested that and has stated that he would not argue with the figure of $2812-50 claimed. The court will thus confirm that component of the ruling.

As regards costs there again is no contention and the court awards these in the sum of $35-00 as claimed. Considering the court’s findings above the applicant’s ruling shall be confirmed with amendments.

To that end therefore:

IT IS ORDERED THAT

The reinstatement clause in the ruling be and is hereby set aside.

The respondent pays the claimant Joseph Chatara cash in lieu of leave in the sum of $2 812-50 within thirty days of this order.

The respondent pays $35-00 as costs to the applicant within fifteen days of this order.

KUDYA J: …………………………..

MHURI J: ……………………………. I agree.

Mutombeni, Mukwesha, Muzawazi & Associates, respondent’s legal practitioners