This is an appeal against a judgment of the Industrial Relations Court dismissing the Appellant's complaint that he was unfairly and unlawfully dismissed. The Appellant was offered employment by the Respondent as a cleaner and was confirmed in this position after completion of the 3 months’ probation period. The letter of offer of employment was silent on whether the Appellant was employed on permanent basis or on fixed term contract. The Appellant did not accept the contract in writing as required, but continued to perform his duties in the usual manner.
During the subsistence of the fixed term contract of employment, the Appellant applied for the position of sales person at the Respondent club. In a letter dated 31 August, 2012, the Respondent wrote to the Appellant informing him that his application for employment as a sales person at the Respondent club was unsuccessful and on that account, they would not be renewing his contract of employment.
Held
1. Where an issue was not raised in the court below, it is not competent for a party to raise it on appeal.
2. There is no mention of fixed term contract in the Respondent's terms and conditions of service. Therefore, the Respondent cannot successfully argue that the Appellant was, from the onset, engaged on contract basis as opposed to a permanent basis as argued by the Appellant, as there is no evidence to support the fixed term contract.
3. The Appellant’s dismissal was unlawful and unfair because the reason given for the termination of the contract was not related to the capability or the qualifications of the employee in performing his duties as a cleaner.
4. The Appellant is entitled to damages for unfair and unlawful dismissal from employment by the Appellant.
