Medecins Sans Frontiers (MSF) Belgium v Vengai Nhopi & 11 Others SC 11/19


“The arbitrator and consequently the court a quo erred in finding that an employee can reasonably form a legitimate expectation for re-employment by the mere fact of being invited for an interview by a former employer. In addition, the contracts that the respondents in casu had with the appellant clearly stated each was for a fixed term. By reason of the burden that the law places on them, the respondents had to place more evidence before the court to show that in light of all the circumstances pertaining to their matter, they reasonably expected to be re-engaged in the appellant’s employ which they failed to do”.

This matter deals with the doctrine of legitimate expectation. This doctrine arises when one has an expectation of being reemployed after the termination of a fixed-term contract. With most companies’ having their employees on fixed-term contracts practitioners should be well versed with this doctrine. Medecins Sans Frontiers Belgium v Vengai Nhopi & 11 Others deals with the legal question whether this doctrine can arise when an employee’s contract is not renewed, and the employer calls him or her for an interview and subsequently the employee is not offered the job. I will point out the problems I have with the reasoning that the court reached as well as the loopholes in this case.

Introduction

Facts

The respondent’s contracts were not renewed upon effluxion of the time stipulated in the contracts. The employer had initially indicated that it was facing funding challenges and hence the renewals were not practical. After the contracts had expired the employer managed to get funding for some of its projects in Mbare, Chikomba as well as Gutu. The respondents were called for an interview. Most of these respondents did not get the jobs applied for. They applied to a Labour Officer and Labour Court challenging their separations. Both forums confirmed the unlawfulness of their dismissals and held that the employer had created a legitimate expectation of contract renewal. The question before the supreme court was therefore whether a legitimate expectation of contract renewal had been created by the act of calling these ex-employees for a job interview.

Court Findings and the Law

The employer argued that it could not renew the contracts as it wanted to employ people from the communities it was operating from. This disqualified most of the respondents. This position was rejected by the Labour Officer as well as the Labour Court which forums insisted that a legitimate expectation of contract renewal had been created.

The court accepted the employer’s position that there was no basis upon which the ex-employees should have developed a legitimate expectation of contract renewal simply because of an interview. These interviews, it was argued, was meant to assess the ex-employees suitability for the new positions. The ex-employees were not suitable as they did not reside in the communities that the employer wanted to operate from. In my view, the court accepted this as a valid reason for not renewing the contracts.

Reference was made to the employee’s contracts which explicitly provided that the employees should not have a legitimate expectation of extension of the contracts. The letter used to communicate the non-renewal of the contract also pointed to the fact that they should not develop a legitimate expectation of contract renewal. The court referred to the case between Magodora v Care International 2014 (1) ZLR 397 (S) which is the authority to the legal position that legitimate expectation of contract renewal will not arise where a contract explicitly forbids such. The court also stated that:

“Reference is also made to the case of Swissport (Pty) Ltd v Smith NO (2003) 24 ILJ 618 (LC) where the point is made that it is a fundamental principle of the law of contract that, once parties have decided to reduce a contract to writing, the document that they produce will be accepted as the sole evidence of the terms of the contract.”

It was because of the above that the court did not find any reason why the employees ought to have argued that they had developed a legitimate expectation of contract renewal.

Final Judgement

The court allowed the appeal. This meant that the employees were not unfairly dismissed.

Own Comment

I think the court missed the point. In my opinion, the question which ought to have been answered is whether an employer who lets fixed-term contracts to expire and then hires a new set of employees on the same terms as the ones terminated commits an unfair labor practice. The employer decided to hire new employees in place of those whose contracts had expired. This, in my view, was unfair. I will illustrate the point.

Section 12B (3) reads:

“An employee is deemed to have been unfairly dismissed—

(a) ….

(b) if, on termination of an employment contract of fixed duration, the employee—

(i) had a legitimate expectation of being reengaged; and

(ii) another person was engaged instead of the employee.”

The interview in question should have been viewed considering the background of this case. The employer did not renew because he had no funding. That was his initial reason. When funding became available the employees should have been re-engaged. The conduct of the employer leaves a lot to be desired. It is argued that the intention from the start was to get rid of these employees. The reasons put forward might have just been a façade to hide the real reason.

The employer went on to employ other people. The reason set forth by the employer is unreasonable in that these employees did not say they could not work in the locations the employer was operating in. They should have been afforded an opportunity to get the jobs considering that they were once employed by the appellant.

It is because of this that I think the court should have afforded these employees protection.

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