Watershed College Trust v Jenipha Madziva and Another

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/53/25
HARARE, 12 SEPTEMBER, 2024 & 19
FEBRUARY 2025
CASE NO. LC/H/627/24
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 12 SEPTEMBER, 2024 & 19

FEBRUARY 2025

WATERSHED COLLEGE TRUST

JUDGMENT NO. LC/H/53/25

CASE NO. LC/H/627/24

APPELLANT

Versus

JENIPHA MADZIVA AND ANOTHER

DHAURAMANZI C (N.O.)

1st RESPONDENT

2nd RESPONDENT

Before the Honourable Kudya J;

For the Appellant

For the 1st Respondent

For the 2nd Respondent

- T. Ndoro, Legal Practitioner

- F. Madondo, Legal Practitioner

- No appearance

KUDYA J:

This is an appeal against the arbitrator’s decision in a labor dispute between the appellant employer and the respondent employee.

The background facts of the matter are that the employer employed the employee as a teacher on a contract with a probation period. Upon expiration of the probation period the employer issued a notice to the employee that it was not extending her contract. Aggrieved by the non-extension of her contract the employee took the matter up with the result that the arbitrator gave a determination in her favour. This prompted the employer to appeal against the arbitrator’s decision.

The appeal grounds can be summarized as follows:-

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1. Arbitrator erred to conclude that the employee had become a permanent employee yet she was on a contract with fixed duration.

2. Arbitrator erred to conclude that notice of termination given on the last date of the probation period amounted to an unlawful extension of the probation period yet the notice did not indicate intention to extend the contract.

3. Arbitrator misdirected herself by concluding that notice of termination of termination of probation period amounted to unfair dismissal or unfair labor practice simply because it was issued on the last day yet there was no evidence of prejudice on the employee by that.

4. Arbitrator erred to assess damages without evidence from either party on quantification and also when the quantification issue was not before her.

5. Arbitrator erred to award damages in foreign currency without option of payment in local tender and without taking into account PAYE and other statutory deductions thereby awarding an incorrect quantum to the employee.

In the result the employer prayed that the appeal succeeds, that the arbitral award be set aside and that the employee pays costs of suit.

In response to the appeal the employee raised points in limine which she dropped on the day of the hearing thus only leaving for determination the merits of the appeal. The response on the merits was to the following effect;

1. Arbitrator indeed erred to conclude that the employee had become a permanent employee. Contract remained a fixed term contract. The error is immaterial since remedy by arbitrator correctly ordered payment for unexpired contract period which would be inapplicable to a permanent employee. Employer should not capitalize on the mistake but focus on the real dispute of unfair dismissal.

2. Arbitrator correctly found that 1 week notice on day of end of probation was unlawful because it could not be retrospective. Probation being a fixed term contract needed no notice but expired by effluxion of time. Effect of 31 March 2023 notice was that employee was now on the main contract effective 1 April 2023 as it could not be applied backwards. Reckoning it from 31 March 2023 was to exceed the life span of the contract.

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3. Reason for termination was not supported by surrounding circumstances so it was unfair. Employer felt I was undesirable by 31 March 2023 but it did not send me away. It was therefore unfair labor practice. Unfair dismissal or unfair labor practice is not judged through prejudice but employee was prejudiced by the job loss.

4. Competent relief was claimed in the statement of claim. The employer did not controvert the submission so employer’s failure to challenge the claim cannot be blamed on the arbitrator.

An appeal is based on the record.

5. There was nothing wrong in denominating the claim in USD since we are in a multi-currency economy. Claim was denominated in USD and employer did not dispute that. An appeal is based on the record so appellant is abusing court process to raise issues which it did not raise at arbitration.

Arbitrator correctly grossed the amount in her determination. Determination of PAYE is not arbitrator’s business but the appellant’s on payment.

In the result the respondent prayed that the appeal be dismissed with costs on a higher scale. The test for appeals is settled. See Nyahondo v Hokonya and others 1997(2)ZLR457 and Hama v NRZ 1996(1)ZLR664 .It is in the light of the test set out in the above cited cases that each of the appeal grounds is discussed below:-

Ground 1

Arbitrator found that the employee had become a permanent employee. This was contrary to the spirit of the fixed term contract which the parties entered into. The point was conceded by the employee who however hastened to mention that the error was of no moment as it was regularized by the award which only spoke to 9 months of the remaining contract. The concession by the employee put to paid the argument about the pronouncement that the employee had become permanent employee. There is therefore no purpose in debating it further. The ground having been conceded therefore succeeds.

Ground 2

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The construct of probation contracts vis a vis the main contract is discussed at large in the following cases: St Giles Rehabilitation Centre v Patsanza SC668/15 and Kazembe v Adult Literacy Organisation SC173/94

A reading of the cited cases demonstrates clearly that the probation contract and the main contract are distinct contracts whose life span is ended differently one from the other. A reading of the letter terminating the employee’s probation contract states that such a contract was not going to be relocated into the remainder of the main contract. The school however fell into error by giving notice of the end of the probation contract on 31 March 2023 suggesting that the notice would be served within the month of April. That is where the employer erred as by so doing it created the impression that it was now upgrading the probation contract into the main contract since the alleged notice period was now to be served in April. It was thus not remiss for the arbitrator to conclude that once parties were in the April to December phase of the contract they were now operating in the main contract. The court notes that had the employer indeed intended to give notice for the termination of the probation contract it should have done so before its expiration see St Giles (Supra).

The court accepts that the notice indicated that it did not intend to extend the contract yet by its very locator within the main contract it was now an extension of a probation contract which is not permissible at law. The employer clearly aprobated and reprobated by writing in the probation contract that it did not intend to extend it yet it was doing exactly that which it was saying did not intend to do. The court therefore finds no fault with the arbitrator’s conclusion. It cannot pass the unreasonableness test set out in Hama v NRZ (Supra). The ground being without merit should fail.

Ground 3

This ground is intricately linked to ground 2 above. Sentiments expressed in ground 2 apply to this ground with equal force. Suffice to add on that prejudice is indeed not a pre-requisite to found unlawful termination. The ground is without merit so should also fail.

Ground 4

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It is settled that damages have to be granted on the leading of evidence. See Redstar v Mabika SC52/05. It is however clear from the employee’s claim that her claim quantum could simply be arrived at by calculating her salary by the unexpired period of the contract. There was therefore no other extra exercise which the arbitrator had to engage in to get the amount due. In any event the contract clearly stipulated what was due to the employee per month.

It was therefore unnecessary to try to find out what was due when it was apparent on the contract. See Kabasa v Gwandi HCH86/04 on res ipsa loquiter principle. The ground also being without foundation should fail.

Ground 5

It is settled that the country is operating a multi-currency regime. See SI 60/24 on the introduction of ZIG currency. It is clear from the face of the parties’ contract that the employee was entitled to USD which could be converted to local currency as her salary. There was therefore nothing remiss by making the order which the arbitrator made.

It is equally settled that the judgment debt arises on the date when the court orders that one should be paid such. See Ingalulu Investments v NRZ SC42/22. There was nothing remiss about the award. If the employer wants to pay what was ordered using the rate of the local currency at the date of payment nothing stops it from doing so. The question of PAYE should not detain the court as the employee can deduct such from the grossed amount. The ground being without merit should fail.

In the ultimate it is clear that the appeal is without merit so it should fail.

IT IS ORDERED THAT:

1. Ground 1 of appeal being merited it be and hereby succeeds.

2. Grounds 2 to 5 being without merit they be and are hereby dismissed with costs on the ordinary scale.

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3. The arbitral decision is to stand with the qualification that reference to the employee as being a permanent employee is expunged from the arbitral award.

Saudi Law Firm- Appellant legal practitioners

Rufu and Makoni legal practitioners- Respondent legal practitioners

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