Zimbabwe Sugarcane Development Association v Clemence Rashai

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/MS/18/16
HELD AT MASVINGO 22 MARCH 2016
CASE              NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/MS/18/16

HELD AT MASVINGO 22 MARCH 2016			CASE NO LC/MS/38/15

& 13 MAY 2016

In the matter between:

ZIMBABWE SUGARCANE DEVELOPMENT ASSOCIATION		Appellant

And

CLEMENCE RASHAI							Respondent

Before The Honourable L Hove, Judge

For Appellant			P Chimombe (Legal Practitioner)

Respondent			In person

HOVE, J:

The respondent in casu argued that he was on a contract with no limit of time and he had been unfairly dismissed with no notice given before the termination of his contract of employment.

He claimed two months salary for June and August plus 5 days in September, 3 months cash in lieu of notice amounting to $900, overtime allowances, airtime allowance and some amount for the trauma caused to him when he was unemployed.

The arbitrator found that no notice was given in terms of the act and awarded $900 as damages in lieu of notice and $600 in relation to the two months he claimed to have worked but not paid.  He dismissed all the other claims.  No appeal has been noted against his decision not to award the other claims.

The appellant was however aggrieved and appealed against the decision to award the respondent $900 in lieu of notice.  It claims initially that the respondent was on a fixed term contract and his contract expired due to effluxion of time.  Another argument was that he had been dismissed for committing an act of misconduct.  This ground of appeal appears to have been abandoned as it was not persisted with in argument.  I must say that it was a ground without any merit as the record shows that this was never one of the issues before the arbitrator.  There were no allegations that termination was as a result of an act of misconduct.

The next ground of appeal that the arbitrator had made a finding that the respondent was employed on a permanent basis is also without merit as the arbitrator made no such finding.  The arbitrator found that the respondent was employed for a fixed term of 2 years.  The arbitrator infact agreed that the respondent was employed on a fixed term basis.

The last ground of appeal seeks to argue that the arbitrator had erred in failing to give effect to the express and implied terms of the contract.

The arbitrator found that the contract of employment was for a fixed term of 2 years neither of the parties had made that averment.  This issue was important as it would determine what sort of notice was to be given.  If it was a contract without limit of time, then the notice period in terms of section 12 (4) (a) of the Labour Act [Chapter 28:01] was 3 months and if it was a contract for a period of 2 years or more the notice period would still be 3 months.

The provision reads as follows;

“Except where a longer period of notice has been provided for under a contract of employment --- notice of  termination of the contract of employment to be given by either party shall be –

Three months in the case of a contract without limit of time or a contract for a period of two years or more.”

The question to ask is not that the 3 months notice was unlawful because it clearly

Was lawful, i.e. if one accepts that this was a two year contract.  The question rather is whether the arbitrator was correct in finding that the contract was for 2 years as the length of the contract would determine the notice period.

The arbitrator found that the first contract was for 6 months from 29 September 2011 to March 2012.  The next contract was for 6 months from March 2012 to September 2012.  There was no other contract.  The employment relationship is said to have however continued from September 2012 to the day of dismissal 5 September 2013.

The arbitrator fell into error when he said that

“Analysing this contract it shows that the applicant was given a two year contract which was supposed to run from September 2012 to September 2014.  However the respondent prematurely terminated the applicant’s contract on 5 September 2013.”

The basis of holding that there was a two year contract was a clause in the contract which stated that;

“Upon satisfactory performance , the contract renewal will be on a two year basis.”

There is no evidence that after the second contract the parties sat down to assess performance, found it satisfactory and entered into a two year fixed term contract.  This is why I think no one averred that there was a two year fixed contract.  There is simply nothing to show that the parties entered into this two year contract.  Rather the parties just continued with their employer employee relationship. The 6 months contract was not renewed and the 2 year contract was not entered into.  The parties simply continued on a tacit relocation of the 6 months contract.  From September 2012 to March 2013 and from March 2013 to September 2016 when he was terminated.

The arbitrator was therefore wrong in assuming that the parties  had actually acted upon the provisions of the paragraph 6 of their 6 month contract.  The parties could have renewed the contract for a 2 year period in terms of the contract but they did not, the respondent did not enforce his rights in terms of that clause.

There was in my opinion no indication that the renewal was going to be automatic.  The paragraph reads

“Upon satisfactory performance the contract renewal will be on two years basis.”

So there was a condition precedent before parties could renew the contract on a two year basis.  There was, as I have already noted no evidence that clause 6 was acted upon by the parties.

The result is that the contract was self terminated by effluxion of time in September 2013, after two 6 months fixed contracts from September 2012.  There was no need for notice.  This position is trite.  See Magodora & Others v CARE International SC 24/14 and Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 (S).

The arbitrator misdirected himself when he, under the circumstances, ordered the payment of 3 months notice in his award.

In the result, the award is set aside and replaced by the following order;

The respondent is hereby ordered to pay 2 months salary i.e. $300 x 2 for the period worked but not remunerated if it had not yet paid.

Each party will bear its own costs.

Baera & Company, appellant’s legal practitioners