Village of Hope v G. Katewera and Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/470/13
HELD AT HARARE 18TH SEPTEMBER 2013
CASE NO LC/H/305/13
JUDGEMENT NO LC/H/470/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGEMENT NO LC/H/470/13

HELD AT HARARE 18TH SEPTEMBER 2013	    CASE NO LC/H/305/13

AND 27 SEPTEMBER 2013

In the matter between:-

VILLAGE OF HOPE						-	Appellant

And

G. KATEWERA AND OTHERS					-	Respondents

Before The Honourable B.T. Chivizhe, Judge

The Honourable L.M. Murasi, Judge

For Appellant	:	Mr. N. Munyuru (Legal Practitioner)

For Respondents 	:	Mr. John Denhere (ZFTU)

MURASI, J.

Respondents were employed by Appellant as builders on fixed term contracts from February 2008 until August, 2012.  Respondents had several such contracts renewed at intervals.  Respondents’ contracts of employment were terminated and the matter was brought before the National Employment Council for the Construction Industry for conciliation and subsequently to an Arbitrator.   Respondents claimed that by the nature of their duties, they should be classified and paid according to the Construction Industry rates.  Appellant, on the other hand, argued that the enterprise was registered under the National Employment Council for Welfare and Educational Institutions and therefore the Respondents should be paid and were paid as graded.

The second issue for determination by the Arbitrator was whether the Respondents’ contracts had been unlawfully terminated.  The Arbitrator ruled that:

Respondents fell under the National Employment Council for the Construction Industry and therefore were entitled to receive arrear salaries arising out of the discrepancies between the salaries paid by Appellant and the correct grades.

Respondents’ contracts of employment were “unfair (unlawful)” and the Appellant was to re-instate the Respondents without loss of salary and benefits with effect from the date of termination.

Appellant is aggrieved with this ruling and has approached this Court for relief.  Appellant argues that Respondents were not unfairly dismissed as their contracts terminated due to effluxion of time.  Secondly, Respondents, Appellant further avers, did not belong to the Construction Industry and could not be paid according to the rates in that industry but according to the rates pertaining to the industry in which Appellant was registered.

The Court will consider the issue of classification first.  Respondents aver that since they were employed as builders, their salaries should be pegged in line with those in the Construction Industry.  Appellant, on the other hand, insists that this cannot be so but that the rates relating to the industry in which Appellant is registered should be used.  The question to be answered is whether the legislature envisaged a situation where an enterprise employing a large number of employees would have to grade each and every employee according to his/her skills and profession and proceed to implement salary grades and scales of different industries.  This question is partly answered by having a look at the Labour Act [Chapter 28:01].  When registering trade unions and employers organisations and such other groups, the Registrar is enjoined, in terms of section 45(1)(a)(iv), to take into account –

“the desirability of reducing to the least possible number, the number of entities with which employees and employers have to negotiate; and ...”

It is clear that a situation where an enterprise has to deal with a multiplicity of unions was not contemplated by the legislature.  The other issue to be considered is what is termed the “Primary Purpose” for which that enterprise and the employees were associated.  In other words, the principal activity of the enterprise is to be taken into account.  This view was expressed by Smith J., in United Food and Allied Workers Union of Zimbabwe Vs Crest Breeders International (Private) Limited HH 139/95.  In the present case, Appellant’s business was not concerned with building, but that construction was an ancillary type of work complementary to the activities of Appellant.  Taking this into consideration, this therefore means that Respondents were correctly graded by Appellant and the Arbitrator erred in this regard.

The second issue to be considered is whether there was unlawful termination of employment.  The facts show that Respondents were employed on fixed term contracts which were renewed on different occasions.  A sample copy of the contract was produced before the Court by consent (Annexure A).  The essential features for the purposes of this matter are that the contract:

gives the employee’s position;

gives the contract period;

provides for salary and benefits;

does not provide for notice of termination.

In fact, the contract further provides that the employee states “I accept the foregoing broad terms and conditions of the time fixed contract as outlined above.”  (Own emphasis).  The employee therefore acknowledges that the contract is of fixed duration.  This is similar to the decision made in Chikonye and Another Vs Peterhouse 1999(2) ZLR 329 (S) where the Court held that, fixed term contracts expire due effluxion of time where there are no provisions for renewal.

The further issue to be considered are the provisions of section 12B (3)(b) of the Labour Act as to whether Respondents had a legitimate expectation of being re-employed by Appellant and whether other persons were engaged to do their work.  The contract of employment produced in Court clearly shows that it ended on a specific date and was “renewable provided project funding is available”.

There was thus a rider to re-employment, that is, the availability of funding.  Can it therefore be said Respondents, in the circumstances, would have had legitimate expectation of re-employment?  The answer should be in the negative.  No evidence was adduced to show that other persons were employed in their stead.  There was a duty on Respondents to adduce this evidence to show that they had legitimate expectation to be re-employed.  See: UZ-UCSF Collaborative Research Programme in Women’s Health Vs Shamuyarira 2010(1) ZLR 127(S).

In the result, the Court finds that the contracts signed by the Respondents were of a fixed duration and expired due to effluxion of time.  The Court further finds that Respondents did not have legitimate expectation to be re-employed.

It is accordingly ordered as follows:

The appeal is allowed.

The arbitral award handed down on 8th February, 2013 is hereby set aside and substituted with the following:

“The claimants’ contracts do not fall under the National Employment Council for the Construction Industry.

Claimants are not entitled to arrear salaries.

Claimants’ contracts of employment were lawfully terminated and their termination is hereby confirmed.”

3.	Each party to pay its own costs.

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L.M. MURASI

JUDGE

........................  I agree

B.T. CHIVIZHE

JUDGE