DOCTRINE OF LEGITIMATE EXPECTATION

Section 68(1) of the constitution of Zimbabwe provides that every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair. Section 68(2) of the constitution further provides that any person whose right, freedom, interest, or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.

It is therefore critical that employers must ensure administrative justice to avoid shortcuts that may result in litigation due to legitimate expectation. Employers must not unilaterally terminate employment contracts of their employees without considering legitimate expectation which is usually built by custom and practice of the organization.  

Section 12B (3) (b) of the Labour 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.

The issue of legitimate expectation has become the source of disputes at the workplace because of different interpretations. However, there are several case law authorities that have clarified the issue of legitimate expectation. 

In the case of Administrator, Transvaal 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 legitimate expectation was also dealt with in the case of Chimutimbira v ZIMRA (LC/H/156/2013) [2014]. The court clarified that someone can not be engaged in place of an employee whose contract has been terminated and had a legitimate expectation. The court ordered the reinstatement of the employee with no loss of salary or benefits. Should reinstatement no longer be tenable, the appellant is to be paid damages in lieu of reinstatement.

The legitimate expectation principle was also dealt with in the cases of Metsoki v Chairman of the Public Service Commission & Anor 1989 (3) ZLR 147 (S); Health Professions Council v McGown 1994 (2) ZLR 329 (S), the court acknowledged the fact that legitimate expectation may arise from an express promise given on behalf of a public authority or from the existence of a regular practice.

This approach has been also accepted in the case of Minister of Information, Posts & Telecommunications v PTC Managerial Employees Workers Committee SC 24-99 where the Supreme Court said that legitimate expectations include expectations that go beyond enforceable rights provided that they have some reasonable and rational basis.

Legitimate expectation often arises from the existence of the regular practice. For example, if an employee is engaged on a fixed-term contract and the contract has been renewed automatically on several times, the employee would build an expectation of continuous renewal. In most cases, employers would often forget to renew the contract and would go for several months without renewal even if the contracts are renewed every months. Such practice would turn the employee to assume permanent status and an attempt to renew the contract may face resistance by the employee concerned. The expectation must have some reasonable and rational basis. For example, an employment relationship may be sour to an extent that either party would not want to continue but the employee would claim legitimate expectation to gain compensation for loss of job. The expectation must be guided by a set of reasons or a logical basis for a course of action or belief. For example, where it has been a practice that someone will be promoted after acting for six months it becomes an issue if the practice is broken on another employee.

Employers should be alert when dealing with termination of employment contracts to avoid litigation of unfair dismissal due to legitimate expectations. Employers must also observe the provisions of section 12(3a) (a) of the Labour Act with regard to a number of times of fixed-term contract renewal and duration. It is also critical that fixed-term contracts of employment must indicate that they automatically terminate upon effluxion of time and any renewal will be treated as a new contract.

Opinions expressed herein are solely those of the author and must not be taken as legal advice. Simbarashe Gobvu is an experienced Labour Practitioner and an Independent Arbitrator who writes in his own capacity. He can be contacted at [email protected]/ Phone 0773215904 or 0713008767 https://masvingomirror.com

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