DIAMOND MINING CORPORATION v TAFA & ORS 2015 (2) ZLR 643 (S)

Flynote

Employment — dismissal — unfair — fixed term contract — dismissal at conclusion of contract — dismissal not in terms of employment code — only unfair if employee had legitimate expectation of re-engagement and another person was engaged instead — damages in lieu of reinstatement — time within which dismissed employee could reasonably expect to find employment — evidence essential

The respondents had been engaged by the appellant on fixed term contracts. Two weeks before the expiry of their contracts, they were relieved of their duties and paid their terminal benefits, including notice pay, cash in lieu of leave and their salaries for the last month of service. They brought proceedings alleging unfair dismissal and seeking reinstatement without loss of salary or benefits. The matter went to arbitration, and the arbitrator found that the respondents had not been dismissed in terms of a code of conduct. He found their dismissals to be unfair and ordered the payment of various sums of money. The Labour Court, on appeal, held that the dismissals were not in terms of a code of conduct and were ipso facto unfair. It held that the respondents were entitled to damages for a period of twelve months.

Held, that the notice given to the respondents was in compliance with the provisions of s 12(4)(d) of the Labour Act [Chapter 28:01]. All that was owed to the respondents at the time of the termination of the contracts was payment for the unexpired portion of their contracts and any benefits which may have accrued to them by virtue of the conditions of their employment.

Held, further that not every termination of employment made outside a code of conduct is, in terms of the Act, unfair. Although under s 12B(2), an employee is unfairly dismissed if the employer fails to show that the employee was dismissed in terms of a code of employment, but this issubject to subs (3). In the case of a fixed term contract, the dismissal is unfair only if the employee had a legitimate expectation of being re-engaged and another person was engaged instead of the employee. The respondents, not having alleged or established that the provisions of subs (3) were applicable in their circumstances, consequently failed to establish that they were unfairly dismissed. The Labour Court therefore erred in upholding the arbitrator's finding that the respondents were unfairly dismissed.

Held, further that no evidence was led by the respondents before the arbitrator of the details of their claims for overtime and terminal benefits. There were, however, before the arbitrator, the letters of termination signed by the respondents and containing detailed calculations of the terminal benefits awarded to, and accepted by, them. What the respondents did was simply to set out what they believed was owing to them. The arbitrator ought to have heard evidence in support of the claims because the onus lay on the respondents to establish them.

Held, further, with regard to the award of damages by the Labour Court, that since the respondents were not unfairly dismissed, they had no claim against the appellant who had already paid them all that they were lawfully entitled to. Secondly, the Labour Court could not, without hearing evidence, arbitrarily decide how long it would reasonably take the respondents to find employment. This was a matter on which the Labour Court was required to hear evidence from both parties, after which it could arrive at a conclusion based on that evidence.