Chronicle Editor
Davies Ndumiso Sibanda, Labour matters
MANY employers fall foul of the law when it comes to managing fixed-term contracts and end up reinstating or terminating employment contracts at a huge cost.
The fixed-term contract is provided for in the Labour Act Chapter 28:01 and its termination is governed by provisions on Section 12B (3)(b) which reads ” if, on termination of an employment contract of fixed duration, the employee—
(i) had a legitimate expectation of being re-engaged; and
(ii) another person was engaged instead of the employee.
Further, the notice period related to the termination of the fixed-term contract are provided for in Section 12 (4) of the Labour Act.
Further, Statutory Instrument 15 of 2006 section 5(d) provides further guidelines on terminating a fixed-term contract.
It reads: “The employee has engaged for a period of fixed duration or for the performance of a specific task and the contract of employment is terminated on the expiry of such period or on the performance of such task.”
The Labour Act does not provide a definition of a fixed-term contract.
The definition is, however, found in case law in cases such as KUNDAI MAGODORA V CARE INTERNTIONAL SC 191/13 where the Supreme Court said: “In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.”
This case emphasises the importance of parties being bound by provisions of the contract they would have entered into as long as the provisions are legal.
In another case which is the authority in defining the different types of contracts SIMBI (STEELMAKERS) (PRIVATE) LIMITED VS M. SHAMU AND OTHERS — SC71/2015, the court said: “A fixed-term contract expires automatically upon the effluxion of its stipulated period.”
However, this judgment has to be read with provisions of Section 12 B of the Labour Act.
Many employers forget to give notice related to fixed-term contracts as required by law and at the coming to an end of the contract, notice-related disputes arise.
Employers have to give the requisite legal notice.
Furthermore, some employers do not re-engage employees at the end of the fixed-term contract, but terminate workers and replace them with others.
That is illegal as the law prohibits such conduct.
Arguments that the employee was a poor performer or had disciplinary issues do not apply as such issues belong to the Code of Conduct and the disciplinary process.
Where an employee’s fixed-term contract comes to an end and the employee continues to work for any period of time with the employer’s approval, then that employee is permanent.
The employee is within his rights to refuse to sign a new fixed-term contract.
This principle was set in a probation end case ST. GILES MEDICAL REHABILITATION CENTRE VS PATSANZA — SC 59/18 where the Supreme Court said: “An employee who continued to work after probation had become a permanent employee, the judge said: “It seems to me that the appellant, having failed to dismiss the respondent during the period of probation, the question that arises is the status of the respondent after the three months probationary period.
Applying Section 12(5) of the Labour Act, it is apparent that the respondent was no longer on probation as the contract stipulated a three month period of probation.”
This judgment clearly gives the principle of what happens if an employee continues to work beyond the stipulated period without a written contract.
In addition, there are cases where employers included clauses in fixed-term contract which says there is no expectation of being re-engaged beyond the life of the fixed-term contract.
While such clauses are valid, as applied in the KUNDAI MAGODORA V CARE INTERNATIONAL case, the courts are likely to look at each case on merits.
This is especially so, where the worker argues that the employer’s conduct was inconsistent with the clause as he had been given several such fixed-term contracts, his job is still there, someone else has been hired to replace him and is doing the same job.
In such cases, the court will order reinstatement or payment of damages in lieu of reinstatement.
In conclusion, fixed-term contract should be crafted by professionals.
Those who manage them should get professional training particularly heads of department who in the majority of cases tend to be reckless when it comes to fixed-term contract termination.
– Davies Ndumiso Sibanda can be contacted on: Email: [email protected]
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