Tonderai Tigere v Food World Supermarket

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/792/14
HELD AT HARARE 3RD NOVEMBER 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/792/14

HELD AT HARARE  3RD NOVEMBER 2014		CASE NO LC/H/853/12

& 21ST NOVEMBER 2014

TONDERAI TIGERE						Appellant

FOOD WORLD SUPERMARKET				Respondent

Before The Honourable G Musariri, Judge

For Appellant		Mr T Tigere, Appellant

For Respondent		Ms M Zvimba, Attorney

MUSARIRI, J:

On 26 September 2012 the Honourable R.E. Nhiwatiwa made an arbitration award at Harare.  In terms of thereof he dismissed appellant’s claim of unfair dismissal by respondent.  Appellant then appealed to this Court against the award.   Respondent opposed the appeal.

The grounds of appeal were three-fold as follows:

“1.	The arbitrator ruled harshly in dismissing claimant’s claim as the claimant was unfairly dismissed from work because he had legitimate expectation of renewal of his contract.  Claimant expected to be re-engaged by respondent since there had been continuous renewal of his contract by respondent.  The arbitrator failed to appreciate the provision of the statutes as Section 12 B (3) of the Labour Act gives a provision that upon continuous renewal of a fixed term contract, one has a legitimate expectation to be re-engaged by respondent.  The doctrine of legitimate expectation may arise from the expressed promise given on behalf of a public authority or from the existence of a regular practice which claimant can reasonably expect to continue.  It is my humble submission that the arbitrator failed to put into consideration that the claimant expected a renewal of this contract as reasonable enough to him, the existence of a regular practice of termly renewal had now been in existence.

2.	The decision of the arbitrator to rule out the claimant’s case can be deemed to have been a bit too harsh as the consideration that respondent also committed an unfair labour practice by placing applicant on a fixed term contract.  A fixed term contract should be for a casual worker.  In casual contracts, the nature of the work must inherently be of temporary duration, as indicated in the common law and statutory definitions.  Courts have ruled as unfair dismissal of employees in arrangements of rotating pools of casual labourers, were the intention was to evade the provisions of the Act.  This was what the arbitrator could also have put into consideration before he dismissed claimant’s claim.  The arbitrator could have looked into the fact that the complainant was a loss controller.  A loss controller should however not be placed on a fixed term contract as his job is one of a permanent nature.  Thus, respondent could have been acting in an unscrupulous way by offering applicant continuous three months contracts in hope of escaping permanent employment which guarantees social security through pension and other employment benefits.

3.	The arbitrator also failed to consider that the respondent acted on an unfair labour practice by placing claimant on a fixed term contract when permanent employment was available. Complainant was a loss controller – a job that has the nature of a permanent employee yet respondent went on to place him on a continuous fixed term contract.  This could have been an attempt by respondent to avoid responsibilities of permanent employment at his expense.”

The arbitrator captured the issues as,

“The arbitration relates to an unfair dismissal.”

His award disposed of the issues thus,

“I hereby dismiss all claims of unfair dismissal by complainant…”

The arbitrator did not deal with the fairness of the engagement of

appellant by respondent as a Loss Controller on a fixed term contract.  Thus the grounds of appeal dealing with that aspect are misplaced.  The only real issue was whether the non-renewal of the contract constituted an unfair dismissal.  Appellant based his case on the fact that the three-month contracts had been renewed several times over a 2 year period.  Ordinarily that raised an expectation of renewal.  However what is required is a legitimate expectation of renewal.  The contract in issue expired on 31 December 2011.     On

15 December 2011 respondent wrote a letter to appellant.  Therein it notified him that “your contract of employment which is due to expire on 31 December 2011 will not be renewed.”   Thus when the contract expired on the 31st  of that month appellant could not entertain an expectation, let alone a legitimate one, of renewal.  Alternatively appellant did not prove that another employee was engaged in his stead.  So he failed to prove the twin requirements of legitimate expectation which are set out in section 12 B (3) (b) of the Labour Act [Chapter 28:01].

Appellant also complained that his termination was prompted by an earlier complaint of unfair labour practice which he filed with the NEC against respondent.  He argued that these peculiar circumstances made his dismissal unfair.  The answer is that he was not dismissed.  His contract expired by effluxion of time.  If he had been terminated at the time of the complaint, his argument might have carried greater force.   However he was terminated at the end of the contract.  Therefore time was the terminator rather than respondent.

Wherefore it is ordered;

That the appeal is hereby dismissed; and

That each party shall bear its own costs.

G. MUSARIRI

J U D G E