Medecins Sans Frontiers (MSF) Belgium v Vengai Nhopi and 11 Others

The appellant, an international NGO providing medical humanitarian services in Zimbabwe, employed the 12 respondents as guards (some as security guard/gardeners) on fixed-term contracts for various periods between 2008 and 2011. The contracts were renewed from time to time during this period. Due to funding challenges, the appellant did not renew the respondents' contracts beyond 2011. The contracts expressly provided that they would terminate automatically at the expiration of the fixed period and that the employer did not guarantee employment beyond the contract period. When the contracts expired, the appellant sent letters confirming non-renewal but stated it would consider the respondents for interviews should any need arise in the future. The appellant subsequently obtained funding for projects in Mbare, Gutu and Chikomba requiring guards and gardeners from those specific communities. The respondents were invited for interviews for these positions but were unsuccessful. Twelve other people from the local communities where the projects would operate were engaged instead. The respondents claimed unfair dismissal, alleging they had a legitimate expectation of re-engagement under section 12B(3)(b) of the Labour Act.

• Whether an employer's invitation to a former employee for an interview for the same post held during a fixed-term contract creates a legitimate expectation of re-employment under section 12B(3)(b) of the Labour Act
• What constitutes a 'legitimate expectation' of re-engagement for employees on fixed-term contracts
• The relevance of express contractual terms that preclude any guarantee of employment beyond the fixed term in determining legitimate expectation
• The burden of proof on an employee claiming legitimate expectation of re-engagement

The appeal was allowed with costs. The judgment of the Labour Court was set aside in its entirety. The arbitral award dated 8 May 2014 was set aside in its entirety.

An invitation to attend an interview does not constitute a reasonable basis upon which a former employee can form a legitimate expectation of re-engagement by a former employer. For a legitimate expectation of re-engagement to arise under section 12B(3)(b) of the Labour Act, the expectation must be objectively reasonable, based on impressions created by the employer, and assessed from the perspective of both employer and employee. Where a fixed-term employment contract expressly provides that it will terminate automatically upon expiry and that the employer does not guarantee employment beyond the contract period, such clear contractual terms preclude the formation of a legitimate expectation of renewal absent substantial evidence that the employer acted in a manner contrary to those terms. The onus rests on the employee to prove that they had a legitimate expectation of re-engagement, and mere ipse dixit based on flimsy grounds will not suffice in the face of clear contractual exclusions. The terms of a written contract remain relevant and serve as important evidence of the parties' intention regarding the employment relationship.

The Court made observations about the nature of interviews generally, noting that an interview provides a platform for an employer to assess the competence of a prospective employee and that the employer has discretion to engage an employee based on findings regarding suitability as exposed by the interview. The Court also commented on the principle that once parties have reduced a contract to writing, that document will be accepted as the sole evidence of the terms of the contract. While not necessary for the decision, the Court noted that the appellant's policy to engage people from the communities where it would operate was reasonable, and observed that the respondents had not shown they lived in those areas, which would have independently justified their non-selection. The Court also referenced the fundamental principle that when determining whether non-renewal of a fixed-term contract constitutes dismissal, the contract itself is an important indication that the parties intended the contractual relationship to terminate on the specified date.

This case provides important guidance on the interpretation of section 12B(3)(b) of the Labour Act [Chapter 28:01] concerning legitimate expectation of re-engagement for fixed-term contract employees. It establishes that: (1) an invitation to an interview does not, in itself, create a legitimate expectation of re-employment; (2) the test for legitimate expectation is objective and must be assessed from the perspective of both employer and employee; (3) express contractual terms excluding any guarantee of employment beyond the fixed term are highly relevant and determinative in assessing legitimate expectation; (4) the burden of proof rests on the employee to demonstrate, with credible evidence, that the employer created impressions upon which a reasonable expectation could be based; and (5) where contracts clearly state they are for fixed terms with automatic termination and no guarantee of renewal, employees must provide substantial evidence to overcome these express terms. The judgment reinforces the principle that fixed-term contracts mean what they say and parties are bound by the clear terms they have agreed to in writing.