Telone Pvt Ltd v Bigboy Sengende

The respondent was employed by the appellant on a fixed-term contract for two years from 30 March 2009 to 29 March 2011. The contract was renewed for a further year until 31 March 2012. Clause 9 of the renewal contract expressly provided that the renewal was entered into with no guarantee of long-term employment or any expectation of further renewals. During that year, the respondent worked with a student on attachment named Mapepa. After completion of the attachment, Mapepa was given a one-year contract operative from 2 March 2012. On 26 March 2012, the respondent was advised that his contract would not be renewed further. The respondent believed he had been unfairly dismissed and referred the matter to arbitration, claiming that Mapepa had been employed in his stead.

• Whether the respondent was unfairly dismissed under section 12B(3)(b) of the Labour Act [Chapter 28:01]
• Whether the respondent had a legitimate expectation of being re-engaged despite the express contractual clause negating such expectation
• Whether another person was engaged in the respondent's stead
• Whether the use of fixed-term contracts constituted casualization of labour or abuse of authority

The appeal was allowed with costs. The judgment of the Labour Court was set aside and substituted with an order allowing the appeal with costs and setting aside the award of the Arbitrator.

For an employee to establish unfair dismissal under section 12B(3)(b) of the Labour Act, the employee must prove: (1) a contract of fixed duration existed; (2) a legitimate expectation of re-engagement existed; and (3) another person was engaged instead of the employee. All three requirements are cumulative and must be satisfied. An express contractual clause negating any expectation of renewal will prevent the formation of a legitimate expectation of re-engagement. Fixed-term employment contracts are lawfully provided for under the Labour Act and their use does not constitute casualization of labour or abuse of authority. The party alleging replacement must provide evidence establishing that another person was actually engaged in their position.

The Court noted that it was contradictory for the lower courts to find that the respondent had a legitimate expectation while simultaneously characterizing the fixed-term contract as an abuse of authority or casualization of labour, because under section 12B(3)(b) there can be no legitimate expectation without a valid contract of fixed duration. The Court also observed that section 12 of the Labour Act makes specific provision for employment contracts of fixed duration and requires employers to inform employees in writing of the period of time for which they are engaged if it is limited, thereby recognizing and regulating such contracts as part of the labour law framework.

This case is significant in Zimbabwean labour law (which is closely studied in South African jurisprudence given the similarities in labour legislation) as it clarifies the requirements for establishing unfair dismissal under provisions dealing with fixed-term contracts and legitimate expectation of re-engagement. The judgment affirms that: (1) fixed-term employment contracts are lawful and employers have the prerogative to use them; (2) express contractual clauses negating expectations of renewal will be given effect; (3) the use of fixed-term contracts is not per se casualization of labour or abuse of authority when done in accordance with the Labour Act; and (4) all three requirements under section 12B(3)(b) must be proven for a dismissal to be deemed unfair. The case provides important guidance on balancing employer prerogatives with employee protection in the context of fixed-term contracts.