adminLabour Matters Davies Ndumiso Sibanda
THERE have been many disputes over termination of fixed-term contracts with workers alleging unfair dismissal for various reasons with the main ones being legitimate expectation of being re-engaged, grounds to do with observance of international conventions and allegations that the employers actions are against public policy.
In the matter Kundai Magodora and others versus Care International Zimbabwe SC24/2014 the Supreme Court put to rest these disputes. First the Supreme Court ruled that where an employee on fixed-term contract is terminated and no other person is engaged in place of the employee there is no legitimate expectation as the Labour Act is express on that the words of the judge Justice Patel were “My reading of Section 12B(3)(b) of the Act does not give me any ground for departing from that decision.
“The plain meaning of that provision is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he was supplanted by another person who was engaged in his stead.
“These requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.
“I do not think that the courts are at large, in reliance upon principles derived from international custom or instruments, to strike down the clear and unambiguous language of an Act of Parliament.
“In any event, international conventions or treaties do not form part of our law unless they are specifically incorporated therein, while international customary law is not internally cognisable where it is inconsistent with an Act of Parliament.”
Further, the Supreme Court ruled that courts cannot rely on principles derived from international custom principles derived from international custom or instruments, to strike down the clear and unambiguous language of an Act of Parliament. This means that conventions and treaties not written into our labour laws cannot be a basis for legal decisions.
The Supreme Court also addressed the issue of employees re-engaged many times and later terminated and the employees were signing contracts that had a clause that read:
“This contract shall in no way whatsoever lead to a legitimate expectation of further employment beyond the contract’s date of termination.” The Supreme Court ruled:
“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 is so as a matter of public policy. See Wells v South African Alumenite Company 1927 AD 69 at 73; Christie: The Law of Contract in South Africa (3rd ed.) at pp. 14-15. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”
Simply put is, once a contract has this clause there is no room to claim legitimate expectation of being re-engaged.
In conclusion, parties need to be clear on what it means to enter into a fixed term contract and also understand the implications of the clauses contained therein.
Davies Ndumiso Sibanda can be contacted on: email: [email protected] or cell No: 0772 375 235
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