Vurayayi Guvakuva v Rural Electrification Agency

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/80/16
HELD AT HARARE 5TH FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/80/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/80/16

HELD AT HARARE 5TH FEBRUARY 2016			CASE NO LC/H/APP/888/15

& 19TH FEBRUARY 2016

In the matter between:

VURAYAYI GUVAKUVA				Applicant

And

RURAL ELECTRIFICATION AGENCY			Respondent

Before The Honourable B S Chidziva, Judge

For Applicant			Ms D V Gapare (Legal Practitioner)

For Respondent		Advocate L Uriri

CHIDZIVA, J:

This is an application for leave to appeal to the Supreme Court against the judgment of this court that was handed down on 12 June 2015.  This court dismissed the appeal against the arbitral award by Honourable N Mukwehwa that was handed down on 31 December 2012.  The arbitrator in his award found that

The applicant was unlawfully dismissed

The contract of employment was not approved by the Minister in terms of the Rural Electrification in Act (REA) [Chapter 13:20] and it was not enforceable

Legitimate expectation of employment beyond August 2015 is unreasonable.

This court upheld the arbitrator’s decision and applicant is now applying for leave to

appeal against this decision.  The applicant’s grounds for this application are that

The court did not consider that applicant had a legitimate expectation for re-engagement by law.

The court did not consider that there is on record evidence of correspondence between the line Minister and the Chairman of respondent’s board bearing on the authorization of the salary that he was being paid.

The court failed to consider the claim for punitive damages.

The applicant has prospects of success on appeal.

The respondent on the other hand told the court that the appeal was hopeless in

that

The applicant had no prospects of success on appeal.

There was no evidence to show that applicant’s salary had ministerial approval.

This court still maintains that applicant was entitled to salaries and benefits for the

unexpired period.  This is so because a fixed term contract lapses on the expiration of the fixed term contract.  This is corroborated by MCNALLY JA  in the case of Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 when he stated that in contracts of fixed duration an employee is not regarded as having been dismissed when contracts expire by effluxion of time and there is no obligation upon the employer to renew a contract.

Further the case of Erickson Mvududu v Agricultural & Rural Development Authority SC 446/14 SC 58/2015 MALABA DCJ stated the circumstances under which punitive damages can be considered

“… what is relevant at this stage is the employer’s fault in the manner on circumstances in which he dismissed the employee and the extent of his blameworthiness in causing the irretrievable breakdown of the employment relationship is only in this situation that the question of punitive damages comes into play and where the discretion to award such damages may be exercised in order to penalise the employer for his culpable conduct.”

This court has already found that applicant was compensated for the unexpired period of employment.  Therefore to punish respondent for exercising its discretion to renew a contract that had expired due to effluxion of time is untenable.

Section 89 (2) (c) (111) of the labour Act [Chapter 28:01] also states that punitive damages are not peremptous where it stated that

“—should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful or wrongful dismissal by the employer, punitive damages may be imposed.””

This section shows that punitive damages are also discretionary.  In view of the foregoing the relationship between the parties was no longer tenable and respondent cannot be punished for that.

To that end therefore it is this court’s finding that the applicant has no prospects of success on appeal.

Accordingly it is ordered that

The application for leave to appeal to the Supreme Court be and is hereby dismissed with costs.

Scanlen & Holderness, applicant’s legal practitioner

Mawire & Associates, respondent’s legal practitioners