Shamva Gold Mine wins appeal against former employ...

Shamva Gold Mine wins appeal against former employee

Nyashadzashe Ndoro

Chief Reporter

The Supreme Court of Zimbabwe has dismissed an appeal by Emmanuel Banda, a former employee of Shamva Gold Mine, who was seeking to overturn a lower court's decision regarding his employment contract.

Banda had filed an appeal against the Labour Court's decision, which upheld the termination of his fixed-term contract by Shamva Gold Mine in March 2022. Banda argued that the contract was unlawful and that he was entitled to permanent employment status.

However, the Supreme Court ruled that Banda's appeal had no prospects of success. The court held that the Labour Court's decision was correct, as Banda had freely and voluntarily entered into a fixed-term contract, which was terminated by effluxion of time.

The Supreme Court also ruled that Section 17(2) of the Labour Act, which allows for the modification of contracts to bring them into conformity with regulations, was not applicable in this case, as Banda's contract had already been terminated.

"In view of the above authorities, the decision of the court a quo is unlikely to be faulted for holding that it cannot rewrite contracts of employment for the parties," reads part of the judgement handed down by Justice Tendai Uchena.

"In any event, the applicant is no longer an employee of the respondent, he is now under the employment of another entity. This means the applicant’s intended appeal has no prospects of success. Moreover, s 17 (2) of the Labour Court Act reads as follows:

'Where a Minister has made regulations in terms of subsection (1), every contract, agreement, arrangement of any kind whatsoever determination or regulation made in terms of any enactment which related to the employment of an employee to whom such regulations relate and which provides terms and conditions less favourable to the employee than those specified in the regulations, shall be construed with such modifications, qualifications, adaptations and exceptions as may be necessary to bring it into conformity with such regulations.”

The judge further ruled: "The employment as a contract worker for a fixed duration excludes the possibility of his also having been employed to perform a specific task. The court a quo was therefore obliged to enforce what the parties agreed to. It is also my view that s 17 (2) of the Labour Act is not applicable in the circumstances of this case as it seems to provide for contracts which are still in existence. In this case the contract was terminated on 31 March 2022."

The court ordered that Banda's application be dismissed with costs.

Shamva Gold Mine was represented by Chimuka Mafunga Commercial Attorneys, while Banda was represented by Bonongwe & Company.