adminto be conversant with the terms.
NetOne Cellular employed Taremba Denga on three months probation. However, the employer did not terminate the contract of employment during the period of probation or at the end of such period. The employer did not do anything until after the expiry of the probation period when Denga was still continuing in its employment. NetOne then decided to terminate Denga’s contract and he sought recourse.
Was the employer entitled to terminate the contract after the period of probation? In J Gumbo versus Air Zimbabwe 2000 (2) ZLR 126, Justice Chatikobo had the following to say.
“There is a presumption that when parties continue the employer-employee relationship beyond the contractual period without agreeing on new terms, there is a tacit relocation of the expired contract on the same terms for the same duration.”
The position in law is that a contract of employment, which provides for a period of probation, is like a fixed term contract of employment for the fixed probation period. Tacit relocation operates. In this case, Denga can be said to have been on a three months fixed term contract.
When such fixed term contract expires and the employer fails to renew it, it is not a correct position of the law to say that the employee automatically becomes one on a contract with no limit of time (permanent). The position in law is that where the contract has been renewed, the parties are deemed to be on the same fixed term contract for the same period.
In case, the employer failed to take any action to either confirm or dismiss Denga during the period of fixed term employment. That contract is deemed to have been renewed. The result is that from the date of expiry of the first fixed term contract, the employer engaged him again on another three months probation period.
Dismissing the employee during probation period can be done on notice in terms of the contract.
However, the employer is entitled to pay the employee for the unexpired period of the fixed term contract. NetOne was thus able to dismiss Denga on notice to him but pay him for the unexpired period of the three months probation period.
The decision to dismiss Denga can therefore be upheld subject to NetOne paying for the unexpired period. The argument that Denga had a legitimate expectation to
be engaged permanently does not apply here.
This is because during probation, the employer has a right not to confirm an employee and can dismiss such an employee without the need to give reasons.
Legitimate expectation can only arise, in our law, where the employee had a legitimate expectation to be re-engaged, and where another person was engaged instead of the employee.
This requirement had not been met, and no evidence adduced to show that another person was employed instead of Denga.
The employer has the right not to confirm an employee on probation without even having to give reasons. For these reasons, Labour Court president Ms Lilian Hove found no merit in Denga’s appeal and dismissed it.
The second issue concerns Ann Nyamala Pereira who was employed by Albek Security on September 1, 2008 and worked for nine months to June 2009. In July 2009, Pereira was asked to sign a contract of fixed term employment. This fixed form contract of employment was signed when she was already permanently employed by Albek Security.
Her status at work was then purportedly changed from one of a contract with no limit of time to a fixed term contract. While so employed, a problem arose between the parties because she was not wearing her full uniform. Pereira said the uniform trousers were too small for her and she brought this to the attention of her superiors.
She was given an option to wear a black skirt with the rest of the uniform instead of the black uniform trousers. One day when she reported for duty, she was told that Phyllis — who was her superior — had instructed Pereira to phone her if she came to work without a full uniform.
Since she wore a skirt, she phoned Phylis who summoned her on July 13, 2009. Pereira was then given a document accusing her of not wearing a complete uniform, selling Tiens products at work and finishing worker early. A Mr Mondi gave her another document terminating the contract of employment with effect from July 26, 2009.
He then demanded that she should hand back the document that contained the allegations, which she did. Pereira was so stressed that she fell ill and had to visit a doctor. She later enquired from the administrator what wrong she had done, and was told not to sue the company but the person who caused her dismissal.
On July 19, 2009 she noted an appeal against her dismissal at the NEC, which upheld it and ordered reinstatement.
The NEC also made a factual finding that Pereira was employed on a contract without limit of time and that the employer had not followed any process in terms of the relevant code. Albek Security appealed against the NEC decision and insisted that the contract of employment was one of a fixed duration.
Albek Security’s attempt to change the contract of employment nine months into an employment relationship was then ruled unlawful by Labour Court president Ms Lilian Hove.
Online Reporter