TM Supermarket Chipinge v Mollen Musararadza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/419/16
HARARE ON 08 MARCH, 2016
CASE NO. LC/H/807/15
AND 08th JULY 2016
JUDGMENT NO LC/H/419/16
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENTNO. LC/H/419/16

HARARE ON 08 MARCH, 2016				    CASE NO. LC/H/807/15

AND 08th JULY 2016

In the matter between

TM SUPERMARKET CHIPINGE				–	APPELLANT

And

MOLLEN MUSARARADZA.           			-	RESPONDENT

Before The Honourable B.T. Chivizhe, J.

For Appellant 	  :		 P Makombe (Legal Practitioner

Respondent: 			Ms. M. Musararadza

CHIVIZHE J:

The matter was placed before me as an appeal against an arbitral award handed down in Respondent’s favour on the 16th of March 2015.

The material background facts are as follows;

The Respondent was employed by the Appellant as a watchman on the 11th of February 2011. She was engaged on the basis of 3 monthly fixed term contracts which were renewed continuously until the 27th of August 2014. Upon expiry of the last fixed term contract Appellant did not renew the contract. Aggrieved by the non- renewal Respondent approached a Labour Officer alleging an unfair dismissal based on legitimate expectation. Upon failure to conciliate the Labour Officer referred the matter for compulsory arbitration in terms of Section 93 of the Labour Act [Cap 28:01].

The Arbitrator’s terms of reference were for him to determine whether Respondent had a legitimate expectation of being re- engaged and to thereafter determine the remedy thereof. The Arbitrator after considering the parties’ submissions and the evidence ruled that the Respondent had a legitimate expectation of being re- engaged and consequently she was to be reinstated to her original job without loss of salary and benefits, if however such reinstatement was no longer tenable the Respondent was to be paid a quantum of damages which was to be agreed upon by the parties failing which the parties were to approach him for quantification. The Appellant was dissatisfied with the arbitral award and noted the present appeal.

The grounds of appeal as captured in its Notice of Appeal are as follows;

GROUNDS OF APPEAL

The Honourable Arbitrator erred at law by awarding an Award as if the Respondent was on an open ended contract.

The Honourable Arbitrator erred at law by awarding back pay as if Respondent was on an open ended contract or contract without limit.

The Arbitrator erred at law by reinstating Respondent without limiting it to a fixed term contract valid for three (3) months only depending with the availability of work.

The Honourable erred at law by holding that the Respondent had a legitimate expectation yet there was none.

There are two main issues for determination as aptly captured by the Appellant. The first is whether or not the Respondent proved/established her claim of an unfair dismissal based on legitimate expectation. Assuming she did establish her unlawful dismissal, the second issue that follows is what was the appropriate remedy available to her. I shall proceed to address the issues seriatim.

WHETHER THE RESPONDENT PROVED THAT SHE HAD BEEN UNFAIRLY DISMISSED.

The Respondent before the Arbitrator alleged that she had been employed from the 11th of February to 27 August 2014; at the expiry of the last contract in August the employer had failed to renew her contract;  the employer had instead engaged another person to do her job; she submitted that the continuous renewal of her contract had created a legitimate expectation that the contract would be renewed. The Appellant disputed the Respondent’s submission that she had been engaged as a deli assistant. Appellant was employed as a security guard and at all times performed those duties. It was Appellant’s submission that her last contract was not renewed due to economic challenges facing it. The Respondent had been duly notified before the expiry of the contract. The Appellant also disputed that another person had been engaged to replace Respondent.

The Arbitrator in his award found that by continuously renewing the contract the Appellant had created a legitimate expectation that the contract would be renewed. He further found that this was corroborated by Appellant’s actions in transferring Respondent to the deli department where Respondent was engaged as a shop salesperson. The Arbitrator also found that another person had been engaged by the Appellant in Respondent’s place.

The Arbitrator in my view clearly erred at law. The claim placed before him by the Respondent was premised on Section 12b (3) (b) (i) and (ii) of the Labour Act [Cap 28:01] which provides as follows;

“(3) An employee is deemed to have been unfairly dismissed-

(b) 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 the celebrated case of Magodora and Ors vs Care  International Zimbabwe  SC 191/13 the Supreme Court ruled that for a claim to succeed one would need to prove that one had a legitimate expectation of being re- engaged and secondly that another person was engaged in one’s place. It was further held that the existence of an expectation without the concomitant engagement of another employee is not sufficient to establish a claim.

Did Respondent have a legitimate expectation based on the continuous renewal by the Appellant of her contract? In order for the Arbitrator to resolve the point it was necessary for the actual contract to be produced to determine the point. See for example in the matter of Magodora and others vs Care International Zimbabwe referred to supra where in dismissing the legitimate expectation argument the court relied on the existence of an express term in the contract that the agreement itself would not give rise to a legitimate expectation for a further renewal.  In casu the contract was not produced before the Arbitrator. The onus was however on the claimant before the Arbitrator to produce the evidence to support her claim. She failed to discharge the onus on her to prove she had a legitimate expectations. In the absence of any evidence to support her allegation it was not proper for the Arbitrator to find existence of legitimate expectation merely on the basis of regular renewals. It was not a sufficient reason on its own.

In regards the second rung of the test the Respondent submitted that another person was engaged. The Respondent however disputed this. The onus however lay on the Respondent as the claimant to prove on a balance on probabilities that another person was engaged in her place. A perusal of the record will show that no evidence was tendered by the Respondent to prove her allegation. She did not produce her contract to show her duties/responsibilities neither did she produce Alice Muvhimi’s contract of employment to show her dates of engagement and her duties/responsibilities. The Respondent having failed to prove both requirements under Section 12(b) (3) (b) (i) and (ii) Arbitrator clearly ought to have dismissed her claim in toto.

Having come to this conclusion it follows that the second issue of the appropriate remedy falls away. I would just however for completeness to indicate that even if the court had reached a conclusion that Respondent was unfairly dismissed and the Arbitrator was correct the proper remedy would have been for the Arbitrator to order the Appellant to renew Respondent’s fixed term contract on the same terms and conditions. The Arbitrator’s award in this case had directed Respondent re- engagement on a permanent basis. That position is clearly not tenable at law as the Respondent was engaged on the basis of fixed term contracts which were renewed on several occasions. The fact that the contracts had been renewed continuously would not in itself result in a conversion of  her fixed term contract to one of permanent employment. This position at law was recentlyclarified in Simbi (Steelmakers) Private Limited vs M. Shamu and Others SC 71/15 where  Supreme Court stated as follows;

“The critical question for determination in casu is whether the categories of casual work and fixed term employment are mutually exclusive.  In this regard, the distinguishing characteristics of the two categories are instructive.  First and foremost, a fixed term contract expires automatically upon the effluxion of its stipulated period, whereas the duration of a contract of casual work will depend upon the nature of the work involved and the circumstances under which it is to be carried out.  It is this indeterminate nature of its duration that entails the deemed conversion of a casual contract into one of   indefinite employment in terms of the proviso to s 12 (3).  On a literal and grammatical interpretation of s 12 (3), and without any attendant absurdity, the proviso clearly does not apply to an employee on a fixed term contract.”

Lastly in the course of proceedings the Appellant’s counsel referred to an offer that had been extended to Respondent for payment of three (3) months’ salary. The offer had been made without prejudice. Appellant was not admitting liability it simply wanted to curtail its costs. The court at the end of the proceedings requested counsel to verify with client if the offer still stood. Through a letter dated 16th March 2016 counsel advised the court that client was no longer willing to pay the three months’ salary. This was due to the fact that it had since been established that Respondent had left the company house she had been occupying without paying bills i.e. rent arrears, water bill and ZESA bill totalling US$515.00. The Appellant having opted to withdraw a token of appreciation previously tendered the court has no powers to direct the Appellant to do otherwise.

In the circumstances the appeal must be allowed. It is accordingly ordered as follows;

The appeal be and is hereby allowed.

The arbitral award handed down on the 16th of March, 2015 is hereby set aside and substituted with the following “claimant’s claim be and is hereby dismissed.”

There is no order as to costs.

Makombe & Associates, appellant’s legal practitioners