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JUDGMENT NO.LCMT46/25, Case No LCB35/25

PETER MARK JOHNSTONE t/a MET SERVICES

VS

DOUGLAS HLABA

THE LABOUR COURT OF ZIMBABWE

For the appellants, S Chamunorwa

JUDGMENT

Hove J:

This is an appeal against the entire arbitral award per the Honourable Arbitrator T.

Chisveto dated 6 February 2025. The Appeal was made in terms of section 98 (IV) of the

Labour Act [Chapter 28:01] (“the Labour Act”), as read with Rule 19 of the Labour Court

Rules, Statutory Instrument 150 of 2017.

The appellant seeks the following relief:

1. The appeal be and is hereby upheld with costs.

2. The award by the honourable arbitrator, Mr T. Chisveto rendered on 6 February

2025 be and is hereby set aside and substituted with the order that reads:

“The claim be and is hereby dismissed.”

FACTUAL BACKGROUND
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The respondent was employed by the appellant on 1 October 2017. He was initially

engaged as a Gang Leader and later re-assigned to other positions, ultimately serving as a

Machine Operator. His employment was governed by fixed-term contracts of three months’

duration, which the appellant continuously renewed upon expiry based on operational

requirements and availability of work.

The respondent served the appellant from October 2017 until 30 June 2024, when his

employment contract was terminated. The termination followed the appellant’s cost-cutting

measures, necessitated, according to the appellant, by the need to reduce operational expenses.

The respondent’s final contract was effective from 26 May 2024 and was due to expire

on 30 June 2024. On 25 June 2024, the appellant issued a notification to the respondent

indicating its intention not to renew the contract beyond 30 June 2024.

It is common cause that prior to the termination, the respondent’s assigned Front-End

Loader developed mechanical faults and had to be sent to Bulawayo for repairs. Following this,

the respondent was directed to proceed on vacation leave. Upon his return from leave, he was

served with the notification of non-renewal of his contract.

It is further common cause that during his tenure, the respondent served as Vice

Chairperson of the Workers’ Committee at the workplace.

Disputed Facts

The parties are not in agreement on several material aspects:

Nature and Cause of Leave

Appellant asserts that respondent was placed on vacation leave as part of cost-management

measures due to high vacation leave liability. The respondent contends, however, that he was
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placed on unpaid leave following the mechanical failure of his assigned machine, and not as

part of any cost-saving strategy.

Circumstances of Termination

While the appellant maintains that the respondent’s contract naturally expired and was not

renewed due to cost-cutting measures, the respondent avers that the termination was

procedurally and substantively unfair and motivated by other factors.

Replacement Issue

The respondent alleges that he was replaced following his dismissal. This allegation is denied

by the appellant, which maintains that no replacement was engaged to take over the

respondent’s duties.

The appellant has couched his grounds of appeal as follows:

“GROUNDS OF APPEAL

1. The honourable arbitrator misdirected himself on a point of law in finding that the
respondent was unfairly dismissed in that the contract of employment between the
appellant and the respondent specifically excluded legitimate expectation of
employment beyond the date of termination of the fixed term contract.
2. The honourable arbitrator erred on a point of law in finding that the respondent was
unfairly dismissed in that the requirement set out in s12 (3) (i) of the Labour Act
(Chapter 28:01) was not met as no other person was engaged to replace the
respondent.
3. As an alternative to ground number 2, the honourable arbitrator grossly misdirected
himself on the facts as to amount to a misdirection on a point of law in that Patrick
Kapitau Moyo was employed before the termination of the respondent's contract of
employment.
4. The award by the honourable arbitrator for the payment of damages without the
alternative order for reinstatement is incompetent and constitutes a misdirection on
a point of law.”

SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, Mr. Chamunorwa, appearing for the appellant,

raised a point in limine. He submitted, for the first time, that the matter ought to be treated as
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unopposed on the basis that the respondent failed to comply with the procedural rules of the

court, specifically Rule 7(1). In support of his submission, he referred to the judgment in

Umguza Rural District Council v Zimbabwe Rural District Council Workers Union LCB

140-24, which he argued establishes the requirement that a party must provide a physical

address not more than 25 kilometres from the court. In casu, the respondent had provided an

address at 14 Jameson Street, Mutare,- well beyond the 25-kilometre radius from the court’s

location. On this basis, he prayed that the court treat the matter as unopposed.

In response, Mr. Mawoyo, representing the respondent, submitted that the issue was

being raised for the first time during oral argument and had not been addressed in any of the

documents filed of record. He contended that this was prejudicial to the respondent. He further

explained that, as the respondent’s representative, he resides in Mutare and does not maintain

a physical office in Bulawayo; accordingly, he considered it appropriate to use his actual

residential address. He urged the court to allow the matter to proceed as presented.

Mr. Chamunorwa emphasised that points of law may be raised at any stage of the

proceedings, provided doing so does not result in prejudice to the opposing party. He submitted

that there had been adequate opportunity to confer with the respondent’s representative, who

did not dispute the facts in question.

Having considered the preliminary point, the court noted that the respondent has failed

to comply with the rules and did not seek condonation for such failure. The court then ruled

that the matter was to proceed as an unopposed matter in view of the respondent’s non-

compliance with the rules.

The court then invited Mr. Chamunorwa to address the court on the merits of the appeal.

On the merits, Mr. Chamunorwa submitted that the notice of appeal challenges the

arbitrator’s finding that the respondent was unfairly dismissed. He argued that the arbitrator
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failed to properly consider relevant legal authorities relating to the doctrine of legitimate

expectation. He referred the court to the submissions in his heads of argument, in which he

cited case law interpreting section 12(3)(b) of the Labour Act. He argued that, for a dismissal

to be found unfair under that section, there must be both (i) a legitimate expectation of re-

engagement and (ii) evidence that another person was employed in the applicant's place. These

requirements, he contended, must be satisfied conjunctively.

He further submitted that the employment contract at issue explicitly excluded the

possibility of legitimate expectation under Clause 9, and therefore, the respondent’s claim did

not meet the legal threshold. In support of this argument, he cited the Supreme Court decision

in Magodora & Another v Care International Zimbabwe SC 24-14.

With respect to the second requirement, Mr. Chamunorwa submitted that the evidence

before the arbitrator showed that no replacement had been hired to take over the respondent’s

position. The individual alleged to have replaced the respondent had in fact been employed

prior to the respondent’s dismissal.

On these grounds, counsel submitted that the appeal had merit and prayed for the court

to grant judgment in terms of the relief sought in the notice of appeal.

ISSUES FOR DETERMINATION

Whether the appeal has merit.

THE LAW AND ANALYSIS

It is important to clarify at the outset that, notwithstanding the striking off of the

respondent’s notice of opposition for non-compliance with the rules of this Court, the Court
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nonetheless invited counsel for the respondent to address the merits of the appeal. This was

done in the interest of justice and to clarify the factual disputes.

The respondent’s claim is anchored in section 12B (3)(b)(i) and (ii) of the Labour Act,

which governs the termination of fixed-term contracts. The section provides as follows:

“12B Dismissal
(1) Every employee has the right not to be unfairly dismissed.
(3) An employee is deemed to have been unfairly dismissed—
(b) 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.”

The statutory requirement is clear: for a claim of unfair dismissal in the context of a

fixed-term contract to succeed, the employee must establish both (i) a legitimate expectation

of re-engagement, and (ii) that another person was engaged in their stead.

This conjunctive interpretation of the provision has been authoritatively confirmed. In

TelOne (Pvt) Ltd v Chigaazira SC 70/17, the Supreme Court held at page 3:

“However, s 12B (3) (b) of the Labour Act requires that for an employee to be deemed
to have been unfairly dismissed in terms of that provision, he must not only establish
that he had a legitimate expectation of being re-engaged, but also that another person
was engaged in his stead. See also Diamond Mining Corp v Tafa & Ors SC 70/15 at
pages 6-7 where the court adverts to the onus of the employees to allege and establish
the provisions of s12B (3) (b).”

In casu, the onus squarely rested on the respondent. A perusal of the record showed that the

argument that it was incumbent upon the appellant to prove the employment date of one Patrick

Kapitau Moyo is misplaced. The court accepts that, having alleged that Mr. Moyo was hired to

replace him, the respondent bore the burden of substantiating that allegation. If he lacked access

to the relevant documentation, it was open to him to employ legal mechanisms to compel

disclosure. See Medecins Sans Frontieres (MSF) Belgium v Nhopi & Ors SC 11-19 at page

7.
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Significantly, clause 9 of the parties’ employment contract expressly excluded any right

to a legitimate expectation of renewal. It provides:

“The employee agrees and accepts that unless a new contract is entered into with the
Employer on the expiry of this Agreement, he shall not have any right to renewal or
extension of this Agreement and shall have no right to claim any re-engagement and
shall have no right to claim any claim whatsoever related to employment beyond the
life of the contract. On the termination for any reason or expiry of this contract,
the Employee acknowledges that he has no legitimate expectation of being re-
engaged by the Employer or of any other contractual relationship with the
Company.” (With Emphasis)
This clause is binding on the respondent and defeats any claim founded on legitimate

expectation. The Supreme Court in Magodora & Ors v Care International Zimbabwe SC 24-

14 interpreted a similar provision and stated at pages 6–7:

“Apart from the clear wording of s 12B (3)(b), we cannot avoid the explicit provisions
of the contracts in casu. The opening paragraph of each of the contracts stipulates that
“This contract shall in no way whatsoever lead to a legitimate expectation of further
employment beyond the contract’s date of termination." This in itself, as was
recognised by Ziyambi JA in Shamuyarira’s case, indisputably undermines and renders
untenable the appellants' contention of having been unfairly dismissed. They are surely
bound by the express terms that they have agreed to and cannot then complain,
notwithstanding those terms, that they had a legitimate expectation of being re-
engaged.

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. See South African Mutual Aid
Society v Cape Town Chamber of Commerce 1962 (1) SA 598 (A) at 615D; First
National Bank of SA Ltd v Transvaal Rugby Union & Another 1997 (3) SA 851 (W)
at 864E-H. In the premises, none of the arguments profered on behalf of the appellants
grounding their claim for permanent employment or re-employment can be sustained
in the present case." (emphasis added) See also MEDECINS SANS FRONTIERS
(MSF) BELGIUM V NHOPI & ORS (supra) at page 12” [With Emphasis]

It follows, therefore, that the claim before the arbitrator was unsustainable ab initio. The

conjunctive requirements of section 12B (3)(b) were not satisfied. The court notes from the

record that the contract of employment excluded any legitimate expectation, and the respondent

failed to demonstrate, by evidence, that he was replaced.

The arbitrator’s reliance on the employment of one Patrick Kapitau Moyo was

misguided. The arbitrator found that:

“...the appellant went on to employ Patrick Kapitau Moyo to perform the same duties
that were being performed by the respondent.”

However, this finding is not supported by the evidence. In the proceedings a quo, the

respondent did not dispute that Mr. Moyo was employed prior to the expiration of his contract,

and that he remained in post thereafter. He was not engaged in place of the respondent, but

rather hired earlier in response to the employer’s operational needs. No evidence was adduced

by the respondent to prove that Mr. Moyo was employed after his own contract had ended, or

that he assumed his exact duties. See TelOne (Pvt) Ltd v Sengede SC 64-15 at page 4.

The arbitrator thus erred in fact and law in concluding that the respondent had been

replaced. This misapprehension of both the law and the evidential burden fatally compromised

the arbitral award. Absent proof of legitimate expectation and replacement, the respondent’s

claim cannot stand.

DISPOSITION

This Court finds that the respondent failed to satisfy the requirements of section 12B

(3)(b) of the Labour Act. He neither established a legitimate expectation of re-engagement, nor

did he prove that he was replaced by another employee.

Accordingly, it is ordered that:

1. The appeal be and is hereby upheld.

2. The award by the honourable arbitrator, Mr T. Chisveto rendered on 6 February

2025 be and is hereby set aside and substituted with the order that reads:

“The claim be and is hereby dismissed.”

3. Each party to bear its own costs.

…………………………………….

HOVE J.
/dg

Calderwoods, Bryce Hendrie and Partners, legal practitioners for the appellant