Tobacco Sales Floor v O Magama & 2 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/436/14
HELD AT HARARE 28TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/436/14

HELD AT HARARE 28TH MAY 2014			CASE NO LC/H/701/13

& 18TH JULY 2014

In the matter between:-

TOBACCO SALES FLOOR					Appellant

And

O MAGAMA & 2 OTHERS				Respondents

Before The Honourable L Hove, Judge

For Applicant		E Donzvambeva (Legal Practitioner)

For Respondent		E Sibanda (Trade Unionist)

HOVE, J:

The respondents in this case were employer by the appellant on fixed term contracts.

When the fixed term contracts expired, the respondents came back to work.  The employer gave them forms to sign as it was the intention of both parties to continue with the arrangement between themselves though the employer indicated that the period of the fixed term contract would just be one month.

The employees requested that the dates on the new contract forms be renewed to reflect the correct year.  The employer insisted that the correction  of the dates could be done later but now the employees had to first attend to their duties.  The formalities could be attended to later.  The employees accepted to resume their employment.   After this, the respondents resumed their duties.

Later when they reported to the appellant company to do the formalities and formalize their new contracts of employment, the employer insisted that the forms be signed as they were and the employees insisted that the correct dates be inserted before they could sign.  The appellant company then called the affected employees one by one and insisted that the forms be signed before the correction of the dates.

The parties had had a dispute previously when the appellant company had refused to pay for earlier work done as there was a confusion on the dates.  So the employees argue that they wanted to protect themselves from another dates dispute and could not trust the employer enough to sign the uncorrected forms.

The appellant company then requested that all the employees should sign but called them one by one.  Others of respondents’ co-workers accepted to sign without the corrections and they continued with their duties.  The respondents insisted that the forms be corrected first and the appellant company terminated their contract of employment.

The respondents were aggrieved and argued that at the time and point of termination, the contracts had already been verbally renewed by a further period of one month.  The employer thus unlawfully terminated their contracts.

The employer on the other hand argues that the respondents’ contracts of employment expired and they refused to sign back on for a further one month extension, thus one could not talk of a termination of contract.

The dispute between the parties was eventually placed before the Grievance and disciplinary committee of the National Employment Council for the Tobacco Industry (NEC).

The National Employment Council after hearing the parties came to the conclusion that the employer had failed to comply with the terms of the contracts which stipulated that the employees would be given two months notice of termination of contracts.  They ordered that the employees be given the cash in lieu of the notice period.

The employer was aggrieved.  He noted an appeal to this court arguing that the issues before the NEC had not been addressed and these issues were:

“We did not refuse to the terms and conditions for the month extension of contracts but we sought clarification from management.

Secondly, we did not sign any contract but we verbally agreed thereby binding by consenting to work on the 2nd May culmination to a contract by being replaced.” (sic)

The employer argues that the National Employment Council failed to

address the grounds of appeal as outlined above when it determined the dispute before it.

When the parties appeared before me, the parties argued this issue of

Whether or not the contracts of employment had been unlawfully terminated by the employer at the time that it dismissed the employees i.e. were the parties contract of employment the expired fixed term contract or was there a new verbal agreement of one month fixed term contract?

Both parties accept that the old contracts had expired, and it is not disputed that on the 2 May, the employer directed that the workers start their work and formalities would be attended to later.  The employees accepted this offer and they resumed their duties. I am of the view that at that point, the employer offered a new fixed term contract and the employees accepted.  There was thus a binding contract between the parties by the time the employer terminated it.

There was a meeting of minds that there was going to be another fixed term contract of one month.  This was a verbal contract and in my opinion a binding one.

When the workers later sought to have the employer endorse the correct year on the terms, the employer at that stage terminated the contracts that had been verbally entered into.  The workers, when they accepted to work and worked on 2 May they were doing so on the understanding by both parties that this was another fixed term contract.  Fixed term contract expires with efflaxion of time.  Munyaradzi Gwisai in his book Labour & Employers Law in Zimbabwe accepts this position, he states as follows;

“if a contract employment is for a specific period (fixed term contract)… then such contract expires automatically at the end of that period … no notice (or reason) is required.”

In casu, the fixed period had not expired.  The issue of legitimate expectation can in my opinion only arise if there was a dispute as to whether or not the employer failed to renew an expired fixed term contract.

See the provisions of section 12 B (3) which provide as follows;

12 B (3) an employee is deemed to be unfairly dismissed-

…

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 however, the parties had agreed to renew for a further one

month and the workers had actually performed in terms of the new contract.  The issue of legitimate expectation cannot arise.

But even if it can be said to arise, the employees had the onus to satisfy the court in terms of section 12 B (3) that they had a legitimate expectation and that another person was engaged in their place.

Whether or not they had a legitimate

I am of the view that the workers were told by the employer to work and the formalities could be done later.  This is a  strong reason to expect that your contract will be renewed or has been renewed.  The signing of the contract forms was going to be a mere formality.  The parties had shown clearly that their arrangement would be extended by a further month.  There was therefore a legitimate expectation based on the employers conduct.

Whether or no someone else was employed instead of the employees

There is a dispute as to whether or not someone else was employed instead of the respondents.

All the respondents gave evidence which was consistent that some other persons were engaged in their places.

The employer’s two witnesses denied that this was the case.  The one witness argued that they were drawing to the end of their peak period and therefore they were scaling down as a result, they did not engage anyone in place of the respondents.

The court does not accept this to be correct because the reason why the employer asked the workers to work and attend to the formalization of their contracts of employment was because there was a lot of work which could not wait until the formalities were done.  It cannot be true therefore that they were scaling down.  The evidence show that there was a lot of work which needed to be urgently done.

The probabilities therefore are more in favour of the respondent’s version.  This being a labour dispute, the standard of proof is a mere preponderance of probabilities.  The most probable version is that of the respondents and I find on a balance of probabilities that the respondents’ version is that the employer did employ other persons in the respondents’ stead.

The second witness’s evidence could not be relied on as he was not employed by the employer then but in a sister company.  In his evidence, he made it clear that he relied on the company records.  But the employer’s company records cannot be relied on for the following reasons

the employer did not keep accurate records for starters, the very reason why this dispute arose was because the employer was refusing to correct a wrong date on a term inspite of it having been pointed out and

a previous dispute which showed an incorrect record keeping was alleged by the respondents and their evidence in that regard has not been refuted.

The witnesses evidence based on records that have been shown to be

faulty cannot be preferred by this court over that of the respondents whose evidence was first hand and consistent.

I therefore make a finding that the employer engaged other persons in place of the respondents.

The requirement under section 12 B (3) would therefore have been met had it been in issue.

In the result therefore, I make a finding that the employer unlawfully terminated the respondents’ contract of employment.  It ought to compensate the employees for the unexpired term of the contract.  I therefore make the following order

that the appeal is hereby dismissed with each party bearing its own costs.

that the respondents be paid for the unexpired term of their contracts together with any other statutory benefits if any.

Wintertons, appellant’s legal practitioners