Takesure Mabviko v Metro Studios/Systems

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/632/16
HELD AT HARARE ON 7TH OCTOBER, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/632/16

HELD AT HARARE ON 7TH OCTOBER, 2016 	    CASE NO. LC/H/228/14

AND 21ST OCTOBER, 2016

In the matter between:-

TAKESURE MABVIKO 							    Appellant

And

METRO STUDIOS/SYSTEMS						    Respondent

Before the Honourable Mhuri, J.

(IN CHAMBERS)

MHURI J.

In the exercise of its functions, the Labour Court may conduct a hearing into the matter or determine it on the record.  See Section 89 (2)(a)(i) of the Labour Act [Chapter 28:01].

This appeal has proceeded in terms of the above section.

On the 14th February, 2014 Arbitrator Mawire issued an award in which he ruled that Appellant was not unfairly dismissed and also dismissed his claim for gratuity.

The terms of reference to be determined by the Arbitrator were two vis

Whether or not Appellant was unfairly dismissed.

Whether or not Appellant should be given a gratuity and if so, in which currency.

Appellant felt aggrieved by the award and lodged this appeal on the grounds that:

“the Arbitrator erred at law in disregarding the issue raised at Arbitration as well as disrespecting Rule 35 of Statutory Instrument 59 of 2006 as well Section 12 C of the Labour Act.”

I find the appeal to be totally devoid of any merit.

It is common cause that Appellant was on fixed term contracts with Respondent.  It is trite that fixed term contracts expire on the effluxion of time.  Their continued renewal irrespective of the period does not mutate them into contracts without limit of time hence permanent employment.  The principles as enunciated in the case of –

KUNDAI MAGODORA & OTHERS

vs

CARE INTERNATIONAL ZIMBABWE SC 24/14

are applicable in this case as this matter arose before the promulgation of Act 5 of 2015.  The above case overruled the Labour Court case of

LIFESTYLE ZIMBABWE FURNISHERS

vs

ADMIRE MAWAPO & OTHERS LC/H/02/2012

relied upon by Appellant.

The Arbitrator was therefore correct in disregarding Rule 35 of this Court’s Rules which states that decisions of the Labour Court shall be binding on the arbitrator.

The Arbitrator’s findings on gratuity are clearly beyond reproach.  It is not in dispute that there are two periods of employment.  In August 2005 Appellant resigned from employment.  He was re-engaged by Respondent in 2009, after a period of more than three (3) months.  This long period disqualified him to claim that there was continuity of service for purposes of claiming gratuity.

As a result at the time of termination of his employment in 2013, he had not accrued the requisite five (5) years which would have qualified him to gratuity.

The Arbitrator correctly analysed and applied the law to the extent that his findings cannot be impugned.

In terms of Section 12 B subsection (3) an employee is deemed to have been unfairly dismissed –

“(a)	……………………………………………

if, on termination of an employment contract of fixed duration, the employee–

had a legitimate expectation of being re-engaged; and

another person was engaged instead of the employee.”

In casu, the submission by the Respondent that Appellant voluntarily quit or refused to be re-engaged when asked during conciliation proceedings went unchallenged.  Further, the Arbitrator found that Appellant was unable to prove that another person was engaged in his stead.

Support is found in the Magodora case (supra) in which Patel JA echoed the following:

“The plain meaning of the provision (Section 12B (3)(b)) is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination  and that he was supplanted by another person who was engaged in his stead.  These requirements are patently conjuctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.”

In the result, the appeal cannot be allowed.

IT IS ORDERED THAT:

The appeal be and is hereby dismissed as it is devoid of any merit.

BHEREBENDE LAW CHAMBERS – Respondent’s legal practitioners