Where a fixed term employment contract expires the only circumstances that would obligate an employer to re-engage the employee is where; the employee had a legitimate expectation to be re-engaged and another person was engaged instead of the employee.
s 12 B (3)(b) of the Labor Act [Chapter 28:01] provides that:
“An employee is deemed to have been unfairly dismissed 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.”
In Uz-Ucsf V Shamuyarira SC10/10 the Supreme Court stipulated the following requirements for a party to prove legitimate expectation
employee has to prove that he had a legitimate expectation of re-engagement (first requirement at law
employee has to prove that another person was hired to his work (i.e. another person was hired to do exactly what he/she had been doing) (second requirement at law)
In Administrator, Transval v Traub (1989) 10 ILJ 823 (A) the court explained the doctrine of legitimate expectation as follows:
“The implication of the doctrine of legitimate expectation is that, if a decision maker, either through the application of a regular practice or through an express promise, leads those affected legitimately to expect that he or she will decide in a particular way then that expectation is protected and the decision maker cannot ignore it when making the decision.”
The case of Administrator, Transvaal (supra) also states that the employer ought to have itself, either through the application of a regular practice or through an express promise led to the expectation.
The court in the case of Chikonye & Anor v Peterhouse 1999 (2) ZLR 329 (S) held that even if performance was satisfactory, there is no obligation on the employer to offer a permanent post to an employee with a fixed term contract and it was not relevant to argue that the appellant’s service was satisfactory.
According to the case of Chikonye (supra) good performance is not a basis for holding a legitimate expectation where the contract of employment state that the contract “may” be renewed.
In Cremark Division of Triple P – Chemical Ventures (Pty) Ltd v SACWU (1994) 15 ILO 289 (LAC) cited in the case of Chimutimbira v ZIMRA LC/H/02/2014 it was held that the termination of a fixed term contract of employment is no different from a termination of a contract on other grounds, i.e., misconduct in capacity etc where it is required that the termination must have been both procedural and substantively fair/justified. Further, the court in that case also held that the employer does not have an unfettered discretion to renew or not renew whatever the reason might have been substantive and procedural fairness is always a requirement, even if you want to cancel a fixed term contract. There is always need that the administrative action be fair, reasonable and non-arbitrary.
At law a casual or fixed term contract cannot mutate into a contract of permanent employment. Therefore, in order for a party to claim legitimate expectation he or she has to prove or satisfy one of the above requirements. The circumstances of the case have to be given the employer’s conduct a reasonable person could have had a legitimate expectation or promise of employment.
By :Rose Mhlanga