Seasonal workers

workers on the pretext that there would be no vacancies, yet they would be continuing with production.
The question that begs answering is: Do seasonal workers have a genuine expectation of being re-engaged continuously on a more-or-less permanent basis? Tobacco Processors Zimbabwe (TPZ) decided not to re-engage its seasonal workers for the 2009 season. The affected workers raised a complaint with the National Employment Council (NEC) for the tobacco industry.
The NEC ruled in favour of the workers — who were represented by the Zimbabwe Tobacco Industries Workers Union — on the basis that they had a legitimate expectation to be engaged for the 2009 season.
As a remedy, the NEC ordered that the workers be given preference in engagement for the 2010 season. In addition, TPZ was ordered to pay each of the workers the equivalent of three months pay as compensation. TPZ then filed an application at the Labour Court for a review of the matter.
Meanwhile, the workers had filed another complaint with a Labour Officer based on TPZ’s failure to comply with the NEC’s determination. The matter was referred to an Arbitrator, who made an award, which basically endorsed the NEC’s determination. TPZ then appealed to the Labour Court against the arbitral award. With consent of the parties, the appeal and review were consolidated as one case. TPZ argued that the case raised three issues. The first issue was whether the NEC had authority to deal with the matter.
According to labour laws, the NEC is empowered to deal with grievances. These are defined as complaints or dissatisfaction by employees concerning conditions of employment. It is common cause that the employees had been engaged during the 2008 season. However, they were not engaged for the 2009 season. TPZ argued that when the complaint arose in 2009, the “employees” were no longer employees. Their contract had expired at the end of the 2008 season. Accordingly, they could not raise grievances with the NEC for the tobacco industry. This is, however, respectfully disagreeable. The employees were understood to be TPZ’s seasonal workers.
They did not cease to be employees just because the season had ended. Theirs was like a permanent employment contract, which was operational on a seasonal basis. As such, they could legitimately file complaints with the NEC like all other employees in the tobacco industry.
To hold otherwise would be both unfair and even absurd. Unfair because all citizens — including employees — have a right to access courts or quasi-judicial tribunals to air their grievances.
Absurd because how else can a dismissed employee test the fairness of his dismissal if he is non-suited solely because of the disputed dismissal. The second issue raised by TPZ was whether the employees had legitimate expectation to be re-engaged. The concept of legitimate expectation in our labour law is introduced by Section 12B (3) of the Labour Act Chapter 28:01. It provides as follows, “An employee is deemed to have been unfairly dismissed if, on termination of an employment contract of fixed duration, the employee had a legitimate expectation of being re-engaged; and another person was engaged instead of the employee.”
The employees were seasonal employees of  TPZ. Some had worked for TPZ for several years. In these circumstances, it cannot be gainsaid that they had legitimate expectation of being re-engaged. Clearly, other employees were engaged to take their place in the 2009 season. TPZ argued that no evidence was produced to show that the employees presented themselves for re-engagement. This was disputed by the employees through their Notice Of Response, paragraph 3 thereof which read as the following.
“This is denied. The history of TPZ speaks volumes. The workers presented themselves for work, only to be advised that TPZ had employed other people instead of them.”
Clearly, this version found favour with the Arbitrator. It is consistent with the circumstances of the case, particularly the history of the relationship between the parties.
In any event, it is a factual finding which, according to Section 98 (10) of the Act cannot be challenged on appeal. The third issue raised by TPZ was if legitimate expectation was found, what was the appropriate remedy for the dis-engaged employees? TPZ conceded that the first part of the remedy given was not problematic. This relates to preference in engagement for the 2010 season.
However, it had problems with the additional remedy of three months pay for each employee.
It argued that this was a blanket remedy given in circumstances where no evidence was led to show the loss suffered.TPZ opined that other employers engaged some employees. Priority re-hiring is the main remedy in these circumstances.
In view of this, Labour Court president Mr Godfrey Musariri dismissed both the appeal and application by TPZ with costs.
That is consistent with the international treaty called Termination of Employment Convention, 1982 (No. 158). Its Article 24 provides the following.
“Workers whose employment has been terminated for reasons of an economic, technological, structural or similar nature should be given priority of re-hiring if the employer again hires workers with comparable qualifications, subject to their having, within a reasonable period from the time of their leaving, expressed a desire to be re-hired.”
In casu the employees’ right to re-engagement having been violated, they were entitled to a remedy. Re-hiring was granted.
That took care of their rights vis-à-vis the 2010 season. What of their rights in the relevant year, that is 2009?
That is where the three months pay came in as appropriate compensation. In other words, both remedies were called for in the circumstances of this case.
That other employees were engaged elsewhere was for TPZ to prove. The Arbitrator anticipated this where he awarded as follows.
“In view of these facts and legal position of the Labour Act, I determine that TPZ should comply with the NEC determination of November 13, 2009 except in the case of those employees who have resigned, retired and taken back.”
Such disputes as may arise from the exception may be referred to the Arbitrator for adjudication.