Waverly Blankets v Spencer Majurira and 39 Others

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/375/25
ZIMBABWE HARARE, 30
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 30 SEPTEMBER, 2025

AND 10 OCTOBER,2025

JUDGMENT NO. LC/H/375/25

CASE NO.	LC/H/144/25

In the matter between:-

WAVERLY BLANKETS	APPELLANT

AND

SPENCER MAJURIRA AND 39 OTHERS	RESPONDENTS

Before the Honourable Kachambwa J

For the Appellant:	H. Mutasa

For the Respondents:	E. E. Matsika KACHAMBWA, J:

THE APPEAL

This is an appeal against the decision of an arbitrator dated the 27th of January 2025. The grounds of appeal were listed as follows;

“(i) The honourable Arbitrator grossly misdirected himself when he proceeded to determine this matter on the erroneous basis that the Respondents had served in the Appellant’s employ for sixty (60) months and above when they had not.

The honourable Arbitrator erred in law when he determined that the deemed permanent employment contracts between the Appellant and the Respondents had not been novated by the subsequent fixed term contracts of employment that each of the Respondents herein executed after the 60th anniversary of their employment with the Appellant.

The honourable Arbitrator erred in law when he determined that the Respondents’ employment contracts had been unfairly or unlawfully terminated yet the aforesaid contracts had automatically terminated by effluxion of time”.

The Respondent opposed the appeal. In limine it was said that there was no question of law arising, that the appeal was challenging findings of fact. On the merits it was said that the Arbitrator had not erred at all as he had simply applied the facts to the law that prohibited what the Appellant did. It was said that the Appellant had sought to evade the law when the law was clear that such evasion was prohibited. The Appellant was said to be attempting to defraud the law. The Respondent further said that the Arbitrator’s findings were not grossly unreasonable. Once the contracts were deemed permanent any termination was supposed to be in terms of the laid down principles and as these were not followed the termination was unfair and unlawful. That was the response in opposition.

THE BACKGROUND

The Appellant is in the Textile Manufacturing Industry. It employed the Respondents on a series of repeated fixed term contract over various periods. Each Respondents’ contract exceeded a cumulative and continuous six months by the 23rd of December 2023.

In terms of Statutory Instrument 147 of 2018, Bargaining Agreement, Textile Manufacturing Industry, section 22(4)(i), fixed term contracts that exceeds sixty months in a continuous run automatically become permanent contracts. The provision reads:

“(4)	Fixed term contract shall be a contract for a stipulated period which shall specify the date of commencement and the date of termination thereof,

Provided that-

(i)  Employees who are engaged on a contract basis (be it fixed term or short term contracts) shall remain as contract workers provided that their continuous service as contract employees does not exceed sixty months. If an employee is engaged on a contract basis for a continuous period of more than sixty months, then that employee shall be deemed to be a permanent employee one day after (the) 60th month of continuous employment. The number of contracts offered during this 60 months is unlimited”.

Each of the employees met the 60 months threshold. Each was made to sign a new fixed term contract after the 60 months. The Respondents argued that such a contract was unlawful as they were now permanent employees whose contracts could only be terminated in the manner prescribed by law. The Appellant argued on the other hand that the permanent contract had been overtaken by a new fixed term contract that each employee had signed.

Section 33 of the said Statutory Instrument 147 of 2018 says that;

“No employer/employee may waive the provisions of this agreement, whether or not the said provision creates a benefit to, or obligation upon the employer/employee concerned. Each provision shall create a right or obligation as the case may be, independently of the existence of other provisions”.

The Arbitrator found that from the provisions of the said Statutory Instrument the parties were bound to the permanent contract and that it could not be

renovated. He reasoned that the provisions intended to protect employees from the fixed term contracts and therefore once the 60 months threshhold was reached the new permanent contract could only be terminated in the way prescribed by the Labour Act [Chapter 28:01]. It could not be terminated by the novation. Therefore the Respondents were declared to be permanent employees hence the appeal.

SUBMISSIONS BEFORE THIS COURT

The parties agreed that each Respondent had met the 60 months threshhold. They also agreed that each Respondent had at least executed one fixed term contract thereafter. They therefore agreed that the question to be decided was whether this amounted to a novation of the permanent contract.

APPELLANT’S ARGUMENT

The Appellant argued that novation is a common law principle whose essence is that a new contract overtakes an old one. In the present case the permanent contract is overtaken by the fixed term one which parties signed voluntarily. Further it was pointed out that a code of conduct does not abrogate common law. A whole list of cases were cited including;

Mupotola v Southern African Development Community SC 7/2006

DHL International v Tinofirey SC 80/2024

Diamond Mining Corporation v Tafa SC 70/2015

On the deeming provision of the Collective Bargaining Agreement it was argued that it cannot thereafter forbid parties from entering into a new contract as to do so would be limiting the parties’ right to freedom of contract. The arbitral award was said not to have considered the principle of novation and to that extent the award was wrong.

RESPONDENT’S ARGUMENT

The Respondent said that the deemed permanent position that accrued after

60 months could not be waived since the Collective Bargaining Agreement (CBA) forbid so in section 33. Further, it was said that the common law principle of novation had been altered by the CBA. In the circumstances the Appellant was said to be trying to circumvent the law. The code was said not to be a mere code but subsidiary legislation (statutory instrument) and as such it could alter common law just as the parent legislation can. Contract termination is provided for in section 12(a) of the Labour Act and that provision was not followed at all after the employees became permanent employees. Consequently, it was argued that the appeal should fail.

ANALYSIS OF THE ARGUMENTS

It is common cause that each of the employees reached the 60 months threshhold. It is common cause that each of them freely signed at least one fixed term contract after the 60 months threshold.

The cases cited clearly show that subsidiary legislation cannot alter main legislation. By the same token it cannot alter common law. A plethora of other cases have pronounced this position as well. In Breastplate Service (Private) Ltd v Cambria Africa PLC SC 66/2020 GWAUNZA DCJ sitting with PATEL JA (as he then was) and MAKONI JA it is said that;

“It is trite that subsidiary legislation or subordinate legislation cannot override or purport to alter, whether expressly or impliedly, anything contained in its parent or enabling statute, or indeed in any other Act of Parliament. This proposition is so axiomatic that it requires no case law or other learned authority to support it”.

Paragraph 52 of the cyclostyled judgment.

Therefore there is no question of common law having been altered by the Collective Bargaining Agreement. In any case the issue should not even arise because the employees were not denied their permanent position. They moved into it and moved out by signing new contracts. They were free to sign or not sign. They opted to sign new contracts. That is freedom of contract. It cannot be argued that once they became permanent employees they could never opt out of it. That would mean that none of them could get out of the contract even if they wanted out. The Respondents’ admission that each had at least signed a fixed term contract after the 60 months means that each had agreed to a new contract. I actually wonder whether this position was seriously considered in view of the previous arguments filed of record and even before the arbitrator.

This case is rather disquieting in the sense that the parties do not seem to be speaking the whole truth. The employees were free to refuse to sign a fixed term contract and to hold the employer to the deemed contract. They were also free to sign a new contract and thereby move out of the deemed permanent contract. Each one is said to have signed the new contract. That is not illegal. That is freedom of contract. It is a choice. No one can be held against it for a long as it was freely done. Nobody said that he was forced to sign his contract. For this reason it is taken that there was agreement. There was agreement to get out of the permanent contract.

There is argument that the permanent contract could only be terminated in terms of section 12 (4a) of the labour Act and that none of those ways was applied. On the other hand it was said that there was novation or migration to another form of contract. Novation is an agreement between the parties to go to a new position. That is what the parties did. This is mutual. It even falls under the said section 12 (4a) as agreement.

“12(4a)  A contract of employment may be terminated only on the part of an employee, his or her resignation or retirement, and in the following cases on the part of an employer-

By mutual agreement in writing; (my underlining)

For the breach	”

The parties mutually agreed to migrate to a fixed term contract.

While it cannot be denied that the Collective Bargaining Agreement’s deeming provision was meant to protect the employee from the vagaries of the fixed term contracts it should not be taken too far to mean that the parties become slaves to the provision. It should give the employee the advantage to become a permanent employee with the freedom to get out of it as well. Without that right it becomes illegal. It should shackle the employer only so as to reduce his powers to force the employee to remain on the fixed term contract.

It is noted that the arguments before the arbitrator and the arguments filed of record were drastically affected by the parties’ agreement that each person reached the 60 months threshold and signed a new fixed term contract.

DISPOSITION

The Respondents freely signed new contracts to replace their permanent contract. Accordingly it is held that;

The appeal be and is hereby upheld with costs.

The arbitrator’s determination be and is hereby set aside and replaced as

follows;

“The Claimants’ claims be and are hereby dismissed with costs”.