Fast-food chain Eat n’ Lick has failed in its latest attempt to overturn a ruling that its former general manager, Israel Chemwayi, was unlawfully dismissed after the Supreme Court ruled the company’s proposed appeal had “absolutely no prospects of success.”
The judgment ends a legal battle between Golden Crust Bakeries (Private) Limited, trading as Eat n’ Lick, and Chemwayi, who successfully challenged the termination of his employment after being recalled from annual leave and told his contract had ended.
Dismissing the application for leave to appeal, Justice Nicholas Mathonsi said the company had not met the legal threshold for the matter to proceed to the country’s highest court.
“I take the view that the intended appeal is not arguable at all as it enjoys absolutely no prospects of success,” the judge said. “The application should be dismissed with costs.”
The Supreme Court found no basis to interfere with earlier findings by an arbitrator and the Labour Court that Chemwayi’s January 2023 employment contract was one of indefinite duration because it did not specify when it would end.
The court also found that Eat n’ Lick’s own documents undermined its case. While insisting Chemwayi had been employed on a fixed-term contract running until December 2023, the company produced what it described as the authentic agreement showing a duration of only one month—from January 1 to January 31, 2023.
Mathonsi said the employer had failed to discredit the contract produced by Chemwayi, which bore the company’s representative’s signature but contained no expiry date.
“Accordingly, I am of the view that the appellant failed to discharge the burden of proof incumbent upon it to demonstrate that the contract produced by the respondent is not a genuine and operative version,” the court said.
The judge also questioned why Eat n’ Lick had approved Chemwayi’s annual leave from October 21, 2023 to January 21, 2024 if it believed his contract was due to expire on December 31, 2023.
The court noted that Chemwayi was still on approved leave when he was called back to attend a meeting on January 2, 2024, where he was informed that his employment had ended two days earlier.
Mathonsi said the termination did not comply with the Labour Act because the prescribed procedure for ending an open-ended employment contract had not been followed.
The Supreme Court also dismissed the company’s argument that the dispute should have been decided by interpreting contractual clauses dealing with “legitimate expectation,” describing that line of argument as irrelevant to the issues that determined the case.
“The argument on legitimate expectation is a red herring,” Justice Mathonsi said.
Chemwayi joined Eat n’ Lick in 2020 and had signed three successive one-year contracts before entering into a fourth agreement in January 2023. An arbitrator later ruled that the omission of an end date converted the agreement into a contract without limit of time under the Labour Act and ordered his reinstatement or payment of damages instead.
The Labour Court upheld that decision before refusing Eat n’ Lick permission to appeal, prompting the company to approach the Supreme Court, which has now dismissed the application and ordered it to pay the costs.
