HARARE – Restaurant chain Eat n Lick has lost its bid to take an employment dispute to the Supreme Court after judges ruled it had no realistic prospects of overturning findings that it unlawfully terminated its general manager’s employment.

In a judgement delivered on July 17, Supreme Court judge Justice Nicholas Mathonsi sitting with Justices Tendai Uchena and Joseph Musakwa concurring, dismissed an application by Golden Crust Bakeries (Private) Limited, trading as Eat n Lick, for leave to appeal against an earlier Labour Court ruling in favour of former general manager Israel Chemwayi.

The dispute centred on whether Chemwayi was employed under a fixed-term contract that expired on December 31, 2023, as Eat n Lick argued, or whether he had been placed on an open-ended contract after signing a fourth employment agreement in January 2023 that did not specify an end date.

The court found that after three consecutive one-year fixed-term contracts between 2020 and 2022, the parties signed a new agreement in January 2023 that omitted any termination date, making it a contract without limit of time under the Labour Act.

Mathonsi said the company’s intended appeal had “absolutely no prospects of success.”

“I take the view that the intended appeal is not arguable at all as it enjoys absolutely no prospects of success. For that reason, the applicant has failed to satisfy the requirements of the law for the grant of leave to appeal,” he ruled.

The court noted that Eat n Lick had approved Chemwayi’s 90-day annual leave from October 21, 2023, to January 21, 2024, a period extending beyond the date on which the company claimed his contract had expired.

While still on leave, Chemwayi was recalled to a meeting on January 2, 2024, where he was informed that his employment had ended on December 31, 2023.

The judgment also highlighted inconsistencies in the employer’s evidence.

Eat n Lick dismissed the employee’s copy of the January 2023 contract as fraudulent but produced what it described as the genuine agreement, which inexplicably showed a duration of only one month, from January 1 to January 31, 2023.

Mathonsi said the company’s own evidence undermined its case.

“One of the contracts placed before the Arbitrator as being the one regulating the relationship between the parties had a life-span of only one month… That contract was produced by the applicant and it stuck to it as if life itself depended on it even though it destroyed its case completely,” he said.

An arbitrator had earlier found that Chemwayi was employed on an indefinite contract and that his dismissal was unlawful because Eat n Lick failed to follow the statutory procedures for terminating such employment.

The arbitrator ordered his reinstatement or payment of damages in lieu of reinstatement.
The Labour Court upheld that decision after finding the employer had failed to prove that the contract produced by Chemwayi was not genuine.

Mathonsi also dismissed Eat n Lick’s reliance on a contractual clause stating that termination would not create a “legitimate expectation” of future employment, describing the argument as irrelevant to the central issue before the courts.

“The argument on legitimate expectation is a red herring,” he said, adding that it did not affect the legal basis upon which the arbitrator reached his decision.

The Supreme Court ultimately ruled that the Labour Court had correctly concluded that the employment contract was one without a fixed duration and that the company had unlawfully terminated Chemwayi’s employment without following procedures prescribed under the Labour Act.

The application for leave to appeal was dismissed with costs.

Chemwayi joined Eat n Lick as general manager in May 2020 on a one-year fixed-term contract and subsequently signed annual renewals in 2021 and 2022.

The dispute arose after the parties executed a fourth contract in January 2023 that did not specify an expiry date.

After he was recalled from approved annual leave and informed that his employment had ended, he successfully challenged the termination before an arbitrator and later the Labour Court, prompting Eat n Lick’s unsuccessful attempt to take the matter to the Supreme Court.