The Labour Court has dismissed an appeal by Watershed College Trust against an arbitral award in favour of a former probationary teacher, ruling that the institution "clearly aprobated and reprobated" its contractual obligations and acted unlawfully by issuing notice of termination after the expiration of the probation period.
In a judgment delivered by Justice Samuel Kudya, the court found that while the arbitrator erred in concluding that the teacher, Jenipha Madziva, had become a permanent employee, the substantive award of damages for unfair dismissal remained valid.
Watershed College Trust had challenged the arbitrator's ruling on five grounds, including the claim that Madziva was erroneously classified as a permanent employee and that damages were improperly awarded in US dollars. However, Justice Kudya found that only one of the grounds had merit and upheld the rest of the arbitrator's findings.
"The employer clearly aprobated and reprobated by writing in the probation contract that it did not intend to extend it, yet it was doing exactly that which it said it did not intend to do," the judge ruled.
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The dispute arose when the school employed Madziva on a fixed-term probation contract, which was due to expire on 31 March 2023.
On that very day, the school issued a notice stating it would not be extending her contract.
The arbitrator ruled that this amounted to unlawful termination and awarded damages, prompting the appeal.
Kudya criticised the college's handling of the matter, stating, "Had the employer indeed intended to give notice for the termination of the probation contract, it should have done so before its expiration. ... It was not remiss for the arbitrator to conclude that once parties were in the April to December phase of the contract, they were now operating in the main contract."
He added that the college's attempt to treat the contract as terminated while simultaneously letting it roll into the next phase of employment "cannot pass the unreasonableness test" laid out in Hama v NRZ.
On the matter of prejudice, the court noted that unfair dismissal need not be measured by harm suffered.
"Prejudice is indeed not a prerequisite to find unlawful termination," Kudya said, affirming the arbitrator's position that the dismissal was inherently unfair.
Addressing the employer's objection to the damages awarded in US dollars, the court reaffirmed Zimbabwe's multi-currency framework.
"There was nothing remiss by making the order which the arbitrator made. ... If the employer wants to pay what was ordered using the rate of the local currency at the date of payment, nothing stops it from doing so."
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The judge further dismissed the employer's contention that the arbitrator had wrongly quantified the damages.
"It was unnecessary to try to find out what was due when it was apparent on the contract. The res ipsa loquitur principle applies."
The judge upheld the appeal relating to the employee's classification as permanent.
He ruled that the arbitral award stands, but with the correction that Madziva was not a permanent employee.
Watershed College Trust was ordered to pay costs on the ordinary scale.
