Kenya Airways Limited v Ephraim Musarurwa and Leticia Mwanakaoma

The respondents were employed by the appellant on 5-year fixed term contracts, the first respondent as Station Manager and the second respondent as Sales/Marketing Agent. Their contracts were due to expire on 30 September 2011. On 28 September 2011, both respondents received letters stating their contracts would expire and would not be renewed. On 1 October 2011, another employee, Itayi Chinyerere-Mafuva, was appointed as Acting Station Manager to take over the first respondent's duties. The second respondent found alternative employment. The respondents referred the matter to conciliation and arbitration on grounds of unfair dismissal. The arbitrator found in their favour, reinstating the first respondent and ordering 3 months' salary in lieu of notice for the second respondent. The appellant appealed to the Labour Court, which dismissed the appeal. The appellant then appealed to the Supreme Court.

• Whether the first respondent was unfairly dismissed when another person (an internal employee) was engaged to take up his position after his fixed term contract expired
• Whether section 12B(3) of the Labour Act requires that the replacement person be an outsider or whether internal appointments also qualify
• Whether the second respondent was entitled to 3 months' notice upon the expiry of her fixed term contract by effluxion of time under section 12B(4) of the Labour Act

The appeal partially succeeded. The order of the Labour Court was upheld in respect of the first respondent and set aside in respect of the second respondent. The appellant was ordered to reinstate the first respondent on the same terms and conditions, or if not feasible, pay damages in lieu of reinstatement. The appellant was ordered to pay the second respondent cash in lieu of accrued leave days only. Each party to bear its own costs.

The binding legal principles established are: (1) Section 12B(3) of the Labour Act does not require that a replacement employee be engaged from outside the employer's establishment; internal appointments also fall within the scope of the provision. The objective is to prevent employees from being discharged and replaced simply because their fixed term contract has expired, regardless of whether the replacement is internal or external. (2) Section 12B(4) of the Labour Act, which requires three months' notice of termination, does not apply to fixed term contracts that come to an end by effluxion of time. It only applies to terminations occurring during the subsistence of contracts of indefinite duration or fixed term contracts of 2 years or more.

The Court noted that the question of legitimate expectation did not form part of the grounds of appeal and therefore did not constitute an issue before the Court. This suggests that in cases under section 12B(3), both elements (legitimate expectation and engagement of another person) must be satisfied, though only the second element was adjudicated in this case. The Court also observed that there was nothing in the papers to indicate that the Station Manager post was ever abolished, implying that abolition of a post might be a relevant consideration in determining whether section 12B(3) applies.

This case provides important clarification on the interpretation of sections 12B(3) and 12B(4) of the Labour Act in Zimbabwe regarding fixed term contracts. It establishes that internal appointments (not just external hires) can constitute unfair dismissal under section 12B(3) where an employee is replaced after expiry of a fixed term contract. It also clarifies that the three months' notice requirement in section 12B(4) does not apply to fixed term contracts that expire naturally by effluxion of time, but only to terminations during the subsistence of indefinite or long-term fixed contracts. This provides guidance to employers and employees on the proper termination of fixed term employment contracts.