A fixed term contract refers to a contract of employment which specifies its period of duration. Put differently, it defines when it will start and end as part of its terms. A contract of employment that does not specify its duration or date of termination or specify that it is for performance of some specific service shall be deemed to be a contract without limit of time.
Our law recognizes the right of parties to agree on a contract of fixed duration and even to repeatedly renew it on the terms agreed by the parties. In UZ-UCSF Collaborative Research Programme in Women’s Health v Shamuyarira 2010 (1) ZLR 127 (S) the Supreme Court held that the continued renewal of fixed term contracts over a period of time does not create a legitimate expectation of re-employment or permanent employment. This position of the law was further affirmed in the case of Magodora & Ors v Care International Zimbabwe SC 24/14 where the court held that the plain meaning of Section 12B (3) (b) is that the employee on a contract of fixed duration must have had a legitimate expectation of being re-engaged upon its termination and that he or she was supplanted by another person who was engaged in his stead. These requirements are patently conjunctive and the mere existence of an expectation without the concomitant engagement of another employee does not suffice.
An employee who is operating on continuous renewals of fixed-term contracts is not always entitled to benefits of permanent employees like annual paid leave. Due to the fact that the fixed-term contracts will be limited each time, the employee might not be able to take annual leave because his contract may be less than a year at any given time.
Pregnant workers may find themselves not entitled to full-pay maternity leave during the duration of their fixed-term contract of less than one year because section 18 of the Labour Act (Chapter 28:01) only entitles paid maternity leave to an employee who had served the employer for at least one year. Further, there is no job security for the employee.
Having noted the highlighted challenges arising from fixed term contracts, the legislature sought to intervene through Labour Amendment Act 5 of 2015 which amended the Labour Act by introducing Section 12 (3a) which now provides as follows ;
(3a) A contract of employment that specifies its duration or date of termination, including a contract for casual work or seasonal work or for the performance of some specific service, shall, despite such specification, be deemed to be a contract of employment without limitation of time upon the expiry of such period of continuous service as is:
(a) fixed by the appropriate employment council; or
(b) prescribed by the Minister, if there is no employment council for the undertaking concerned, or where the employment council fixes no such period; and thereupon the employee concerned shall be afforded the same benefits as are in this Act or any collective bargaining agreement provided for those employees who engaged without limit of time.
By introducing this section the legislature recognized the imbalance in the negotiating power between the employer and employee hence the section, to an extent seeks to protect employees from abuse of fixed term contracts by giving permanency of employment where a certain number of renewals are attained.
This provision empowered the Minister of Public Service Labour and Social Welfare or various sectors of industry to agree through Collective Bargaining Agreements to the maximum period of renewal of a fixed term contract before it graduates into a contract without limit of time.
To date the Minister is yet to wield the power in terms of this Section but some industry sectors have already utilized the provision through Collective Bargaining Agreements.
These include the following examples:
- Statutory Instrument 67 of 2017 that is the Collective Bargaining Agreement: Agricultural Industry, which states that a fixed term contract should be fixed at nine months and when renewed for six times continuously the worker shall become a permanent employee;
- Statutory Instrument 125 of 2018 that is the Collective Bargaining Agreement: Tobacco (Miscellaneous Sector) Industry, which states that a fixed term contract employee will be deemed to be permanent on continuous service of five years;
- Statutory Instrument 54 of 2016 that is the Collective Bargaining Agreement: Tourism Industry which states that a fixed-term contract shall be deemed to be an indefinite contract upon the expiry of four years of continuous service; and
- Statutory Instrument 27 of 2018 that is the Collective Bargaining Agreement: Chemicals and Fertilizers Manufacturing Industry; which states that a fixed-term contract employee will be deemed to be a permanent one on continuous service of five years.
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