Duration of work very important

unceremoniously terminated (LC/H/02/2012).
Some of the workers had served the company for more than 10 years and were bound to leave without any terminal benefits, severance package or gratuities.

Labour Court president Mr Custom Kachambwa ruled that if in four months an employer is able to give work that aggregates to six weeks or more, then there is work of a permanent nature. An employee would then be deemed to be on a contract without limit of time – a permanent contract.

The aforegoing decision has far reaching implications. The provisions of Section 12 (3) of the Labour Act will apply to a scenario whereby the employer makes employees sign short term contracts to evade the period of six weeks in four consecutive months.

The critical issue for determination is the duration for which employees are made to sign short term contracts of employment.

If the employer habitually makes employees sign contracts of employment of less than six weeks for a reasonably long period of time, the inference is that such employees cease to be casual workers and assume the status of employees on contracts without limit of time or permanent employees.

The mischief which the lawmakers wanted to address by enacting the provisions to Section 12 (3) of the Labour Act is one where employers benefit from hiring casual labour without shouldering any legal responsibilities towards such employees.

An example is the payment of pensions and other contractual obligations that come with permanent employment. This statutory intervention is plausible because it seeks to protect the employee, who is the weaker party, from exploitation by the employer who has a stronger financial muscle.

There is no equilibrium in the employment relationship because the employer is financially stronger than the employee. Section 12B (1) of the Labour Act bestows employees with an express legal right against unfair dismissal and this is a guarantee of job security and insulation against unfair dismissal.

As to what constitutes a reasonable period of time from which a deduction can be made that a casual contract of employment has metamorphed into a permanent contract of employment, there is no hard and fast rule. Each case will depend on its facts and merits. In casu, the consistent renewal of weekly contracts of employment spanned for a period ranging up to 10 years.

In the Arbitration case of Shadreck Chintengo and 64 Others versus Zimtile, the employer renewed short term contracts for a period ranging from two to 10 years and later chose not to renew such contracts.

Aggrieved by the non-renewal of their contracts, the affected employees sought recourse in terms of the labour dispute resolution mechanism and the matter was referred to Arbitrator Caleb Mucheche for compulsory arbitration. Relying on the Labour Court decision in the Lifestyles Zimbabwe Furnishers case, Mr Mucheche came to the conclusion that the affected employees were now on a contract without limit of time by operation of the provisions of Section 12 (3) of the Labour Act. There is a pedigree of Labour Court decisions against casualisation of labour. (See Rachel Kadzinga and 20 Others versus Eastern Textiles (Pvt) Ltd; Bata Shoe Company versus Zimbabwe Bata Workers Committee).

It is important to note that in terms of Rule 35 of the Labour Court Rules SI 59 of 2006, Labour Court decisions are binding on Arbitrators and other subordinate authorities. Rule 35 (2) of SI 59 of 2006 explicitly provides the following.

“Decisions of the Court shall be binding on all labour officers, Arbitrators, disciplinary authorities and other determining authorities acting in terms of this Act.”

The use of the word “shall” means that the binding nature of Labour Court judgments on Arbitrators is peremptory and not discretionary.

It is unfair for employers to use employees for periods ranging from in excess of six weeks in any four consecutive months and then throw them away into the jaws of unemployment on the pretext that they are casual workers. With due respect, that conduct is against public policy and runs foul to Section 2A (1) of the Labour Act whose chief purpose is to advance social justice and democracy in the workplace.

It is nefarious, barbaric and reminiscent of the dark ages for employers to casualise labour and hide behind the façade of short-term contracts of a casual nature as that conduct is proscribed as being fraudulem legis.

It will be equally wrong for the Courts and Arbitrators to aid and abet employees who seek to violate the law by casualising labour so that they can oppress employees with impunity and thereafter discard them.

To do so would be akin to baptizing the devil with the saints’ tears from the alter. Judges and Arbitrators should be prepared to interpret the Labour Act in a manner that resonates or is in sync with its purpose, which is social justice and democracy in the workplace, not injustice and autocracy. Nothing more and nothing less.

However, it is noteworthy to point out that the aforegoing Labour Court decision does not abrogate or annul the status of genuine fixed term contracts of employment.

The trite legal position is that a fixed term contract of employment automatically terminates on the date of its expiration. (See Chikonye and Anor versus Peterhouse School).

That a fixed term contract of employment meets its death on the date of its expiry was codified by the legislature in the Labour (National Employment Code of Conduct) Regulations, 2006 (hereinafter referred to as SI 15 of 2006).

Section 5 of SI 15 of 2006, which deals with termination of employment, confirms the facts that a fixed term contract of employment automatically self terminates in the following peremptory terms.
“No employer shall terminate a contract of employment with an employee unless the worker was engaged for a period of fixed duration or of the performance of a specific task and the contract is terminated on the expiry of such period or on the performance of such task.”

From the foregoing, it is crystal clear that a fixed term contract commences and ends on a specific date indicated in that contract.

There is no legal requirement for an employer to give an employee notice of termination of a fixed term contract of employment when it expires.