TelOne (Pvt) Ltd v Chigaazira (SC70/17)

“Applied to the circumstances of this case, it is evident that even if this court were to find that the respondent had a legitimate expectation of his contract being renewed, his claim would fall on the basis that the second requirement was not met.”

Introduction

Disputes involving the doctrine of legitimate expectation of contract renewal are prevalent in our jurisdiction. The question that arose in TelOne (Pvt) Ltd v Chigaazira SC 70 – 17 is whether the mere placement of an advertisement after an employee’s contract has expired results in unfair dismissal in terms of section 12B of the Labour Act (Chap 28.01).

Facts

The appellant company gave the respondent employee notice of both the expiry and the non-renewal of his 5-year fixed-term contract.  The appellant went on to advertise for the post of Commercial Director, a title which was previously held by the respondent. The employer did not employ anyone despite advertising the position. The Labour Court decided that there was a legitimate expectation of renewal of the contract a position the appellant did not agree with thus resulting in the supreme court dispute under discussion.

The law

The court looked at the structure of section 12 (B) which reads:

“(3) 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 re-engaged, and

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

In the court’s assessment, the two requirements in sections 12(B)(3)(B) (i) and (ii) should be present for an employee to be deemed unfairly dismissed. It ruled:

However, s 12(b)(3)(b) of the Labour Act requires that for an employee to be deemed to have been unfairly dismissed in terms of that provision, he must not only establish that he had a legitimate expectation of being re-engaged, but also that another person was engaged in his stead.

Conclusion

The court concluded therefore that there was no unfair dismissal.

Own Comment

The supreme court’s remarks and conclusion are important. Indeed the use of the word “and” between sections 12(B)(3)(B)(i) and (ii) shows that both sub-sections must be interpreted jointly and not separately. It was going to be a different case if the legislature had used a word such as “or” which would give a claimant an option to prove legitimate expectation alone without worrying about whether someone was employed in their stead.

401 Views

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!