ZESA Holdings V Sheilla MESO AND 25 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/208/2013
HELD AT HARARE ON 28 MAY, 2013
JUDGMENT NO. LC/H/208/2013
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IN THE LABOUR COURT OF ZIMBABWE     		JUDGMENT NO. LC/H/208/2013

HELD AT HARARE ON 28 MAY, 2013			CASENO./LC/H/399/2011

In the matter between:-

ZESA HOLDINGS							-	Appellant

And

SHEILLA MESO AND 25 OTHERS				-	Respondents

Before The Honourable L. Hove: President

For Appellant 	-	Ms. J. Zindi (Legal Practitioner)

For Respondent 	-	Mr. S. Matova (Unionist)

HOVE L.:

This is an appeal from the decision of an Arbitrator who found that the termination of the Respondents’ Contract of employment by the Appellant (ZESA) was unlawful and he ordered that ZESA should retrench the Respondents.

The facts of the matter are that the Respondents were employed by ZESA on three months fixed term contracts.  These contracts were renewed for periods varying between 2 and 4 years, on 4 August 2010, ZESA gave notice that the contracts would not be renewed.  The Respondents’ were dissatisfied with the termination of their contracts and they claimed that they had been unfairly dismissed.

The Arbitrator upheld the claim by Respondents that they had been unfairly dismissed for the following reasons;

That no notice was given as required by the Labour Act and SI 1 of 2008 of the Respondent’s Collective Bargaining Agreement.  This dismissal violated Section 12 B (3) (a) of the Act.

That continued renewals of the contracts had created a legitimate expectation that they would be permanently employed and a security company by the name Trust Me was engaged in place of the Appellant thus the employer had violated the provisions of Section 12 B (3) (b) (i) and (ii)

ZESA appealed against the award to this court and raised several grounds of appeal. The issues that therefore fall for determination are:

Whether or not the Arbitrator misdirected himself when he held that; notice, in terms of the Labour Act [Chapter 28:01] (the Act) ought to have been given

Whether or not the Arbitrator misdirected himself by finding as he did that the Respondents’ had a legitimate expectation to be permanently employed.

Whether or not someone was employed in place of the Respondents’ by the Appellants in a manner that made the employer breach the provisions of Section 12 B (30 (b) (i) and (ii).

I will deal with these issues one after the other.

Whether or not notice ought to have been given?

It is trite in my opinion that a fixed term contract expires by efflexion of time and no notice is required.  If, as is the case in casu, a contract of employment is for a specified period or in other words, a fixed term contract, then such contract expires automatically at the end of the period, no notice is required.

In the case of Chikonye and another vs Peterhouse School 1999 (2) ZLR 329

Termination of contracts at the expiry of the fixed term was upheld.

The Arbitrator therefore misdirected himself in holding, as he did that notice was required when terminating a fixed term contract.

Whether or not the Respondents’ had a legitimate expectation to be employed due to the previous renewal of their contracts?

Legitimate expectation must be reasonable, based upon some reasonable and rational basis for example legitimate expectation may arise from the expressed promise given on behalf of the employer or from the existence of a regular practice which the claimant was reasonably expecting to continue.

See in this case the case of PTC VS Managerial Employees Workers Committee 1998(1) ZLR 444.

In casu, the Respondents have not sought to establish the basis of their expectations to enable the court to assess if such expectation was reasonable.  The mere fact that it had been renewed on several occasions before cannot in itself establish the reasonableness of holding a legitimate expectation.

It is true that the legislature has in Section 12B (3) (a) (i) and (ii), sought to moderate how even fixed term contracts can be terminated but an employee must prove that they had a legitimate expectation and according to the  numerous Supreme Court decisions, that expectation must have a reasonable basis.

I find in this case that the Respondents’ have not established a reasonable basis for their expectation.

Lastly,

Whether or not someone was employed instead of the Respondents’ when their contracts were terminated?

Apart from establishing a reasonable basis for holding an expectation to be reengaged, an employee must also show that another person was engaged in their place.

Once the two requirements have been established, the termination of a fixed term contract even at the expiry of the fixed term can still be found to be unfair dismissal by virtue of the provisions of Section 12 B (3) (b) (i) and (ii).

In casu, the employees submitted that a security firm was hired to do their work.

They however fail to show what work they were engaged in and what work the security company is engaged in to establish or prove that the company was engaged to do the work that they had been doing.

Their mere say so is not sufficient to discharge the onus that is on them.  There is therefore nothing before the court to convince it that the security company was engaged to do the work that they had engaged in previously.

I find therefore that Respondents have not proved the two factors under Section 12B (3) (b) to enable them to succeed in their claim that the dismissal was unfair.

The facts in Bata Shoe Company Limited vs Zimbabwe Bata Workers Committee are clearly distinguishable in this case.  Different considerations present in that case are absent in casu and the two cannot be equated.

The Arbitrator also misdirected himself in ordering that there be a retrenchment.  There was no basis in law to warrant that order.  The matter before him was not a retrenchment matter.

In the result the Arbitrator is found to have misdirected himself and the award cannot be upheld.  I therefore make the following order;

The appeal be and is hereby upheld.

The arbitral award is set aside in its entirety and the employer’s decision to terminate is upheld.

Mtetwa and Nyambirai– Appellant’s Legal Practitioners

ZESA Technical Employees Association– Respondents’ Representative