Reason Masomera v Zimbabwe Haulage Truck Drivers Union

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/62/23
HELD AT HARARE 14 February 2023
CASE NO. LC/H/1043/22
AND 27 February 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/62/23

HELD AT HARARE 14 February 2023	CASE NO. LC/H/1043/22

AND 27 February 2023

IN THE MATTER BETWEEN:-

Reason Masomera	Applicant

And

Zimbabwe Haulage Truck Drivers Union	Respondent

Before the Honourable Mr. Justice L.M. Murasi

Applicant	In Person

For Respondent	Mr. Obert Makonya

MURASI J:

This is an application for condonation of the late filing of an application for review.

The brief facts are as follows. Applicant was in the employ of the Respondent. He fell ill and was granted sick leave in October 2018. After the initial three months on such leave, Applicant was granted a further three months as provided in the Act. Applicant did not report for duty at the end of the second period. Respondent wrote to Applicant in June 2019 informing him that his employment was being terminated with effect from the end of that month. Applicant thereafter filed a complaint with the Labour Officer who proceeded to dismiss his application. Applicant sought a review of those proceedings before this Court. This application was struck off the roll because it was improperly before the Court. Applicant thereafter sought to have the Labour Officer apply for confirmation of the draft ruling. This attempt did not yield the desired result. Applicant seeks to have decision of the Respondent reviewed by this Court. He is woefully out of time. Hence the present application.

Preliminary Issues

At the commencement of the proceedings, Applicant raised a point in limine to the effect that Respondent had proceeded to file heads of argument in the matter before filing the response. He contended that the matter should therefore be deemed to be unopposed as Respondent had

not complied with the Rules. In response, Mr. Makonya acknowledged that indeed this is what had happened but it was not a willful disregard of the Rules. He explained that the person who had been assigned to file the documents noticed, at the stage of filing, that the other document had not been signed before a commissioner of oaths. Instead of coming back with all the documents, the person had instead filed the heads of argument. The response was filed thereafter when the documents were now in order. Indeed the documents show that the heads of argument were filed on 21 November 2022 whilst the response was filed on 23 November 2022. Asked by the Court whether he had suffered any prejudice, Applicant replied in the negative. The Court was of the view that the explanation was indeed a reasonable one and proceeded to dismiss the point in limine.

Mr. Makonya stated that he had a point in limine to raise. He contended that the application was improperly before the Court for want of compliance with section 94 of the Labour Act, (Chapter 28:01). The Court, without asking the Applicant to respond, informed the Respondent that the law referred to was inappropriate in the circumstances.

Applicant’s Submissions

Applicant stated that he largely abided by the documents filed of record particularly the Founding Affidavit. He stated that the intended application was out of time by more than three (3) years and it is a long time under normal circumstances. Applicant submitted that he had been mistaken about the operation of the law when he made the first application to the Labour Court and had not done anything about the letter informing him about the termination of the employment contract. He further submitted that the details of the case clearly showed that he was not sitting on his laurels but doing something about his case.

As far as the prospects of success were concerned, Applicant stated that Respondent had not given him any notice of the intended termination of the contract. He also stated that Respondent had not paid his salary in respect of the initial 90 days. As far as the notice to terminate the contract of employment, Applicant heavily relied on the case of ZIMASCO v Maynard Farai Marikano SC 130/11. He insisted that Respondent had complied with the audi alteram partem principle in terminating his contract of employment. He stated that on the basis of this case, the decision of the Respondent would likely be set aside in the review application.

Respondent’s Submissions

Mr. Makonya stated that the Applicant was a trade unionist who was supposed to know what the law provided in his circumstances. He submitted that Applicant had not shown that he was a good candidate to be granted the option to file the application. He argued that Applicant had wasted time making applications to the Court when in fact he should have focused on the letter terminating his employment contract. He also stated that the Respondent had complied with the Act and that Applicant had not shown that there had been non-compliance. It was further argued that Applicant had taken too long a time in approaching the Court for relief.

Analysis

Two issues arise in the application. The first is whether Applicant has tendered a reasonable explanation therefore and the second being whether there are any prospects of success.

Applicant has conceded that a delay of three years is long. Applicant’s explanation leaves a lot to be desired. Applicant admits that after receiving Respondent’s letter terminating his employment, he did not do anything about the matter. He stated that he concentrated on some other issues related to his employment with the Respondent. The letter ‘took a back seat’ so to speak. The events show that Applicant was pursuing other matters instead of the one which he now wants the Court to determine. He was blundering from pillar to post and not focusing on the pertinent issue affecting him. I am of the view that the explanation tendered is not reasonable in the circumstances.

I will proceed to deal with the issue of prospects of success. Applicant’s argument is anchored on the fact that he contends that the Respondent did not give him a notice to show that it intended to terminate his employment thus depriving of the right to be heard in the circumstances. As stated elsewhere in this judgment, Applicant relies on the case of ZIMASCO v Marikano (supra). However the answer lies in a decision of a five-member bench of the Supreme Court in Zulu v ZB Financial Holdings (Pvt) Ltd 2018 (2) ZLR 160 (S). I will endeavor to reproduce the pertinent portions of the judgment for the sake of clarity. At page 165 F, the apex Court stated thus:

“In essence, what these remarks mean is that the respondent ought to have given notice to the appellant that it intended to terminate her employment due to the fact that she had exceeded the number of sick leave days specified in the law. However, it is important to point out, with respect, that the above remarks by GARWE JA were obiter. The ratio decidendi, in my view, was that the group policy and procedures were not complied with by the appellant in that case. The learned judge of appeal held that since s 14 (1) of the Act provides that unless more favourable conditions are provided for in an employment contract, sick leave shall be provided for in terms of s 14 of the Act, and the appellant ought to have followed what was stipulated in the policy and procedures that were incorporated in the employment contract.

I now turn to address the question whether the employer has an unfettered discretion to terminate employment under s 14 (4) of the Act…

……

A reading of this section shows that is silent on the requirement for the employer to give notice to the employee before terminating employment under the section. In the absence of such a requirement, to hold that the employee ought to have been afforded a chance to be heard before dismissal is tantamount to ‘reading into’ and altering the clear language of the statute.

…….

In this case, the Act gives the employer the discretion to terminate the employment of the employee and does not go further to state that the employee should be notified of the impeding dismissal. This provision codifies the common law principle that an employer is entitled to terminate employment due to incapacity. This common law principle is entrenched in our law and there is a presumption that a statute cannot alter the common law without saying so explicitly.

….

In light of the above, I am of the view that the view that the provision does not take away the employer’s unfettered discretion to terminate employment due to incapacity. It would be a gross miscarriage of justice to impose an onerous obligation on the employer where the clear language of the statute does not provide such an obligation.”

The above precedent by the Supreme Court is self-evident that Applicant could not legally have expected the Respondent to give him notice in the circumstances. Applicant’s case is exacerbated by the fact that he did not comply with section 14 (3) of the Act. This issue is raised by the Respondent in the letter terminating the employment contract. Respondent had to make enquiries about Applicant’s recovery whilst he made no effort to comply. The Court in the Zulu Case made the following pertinent observation at 167 B-C:

“In the specific circumstances of this case, it would have been onerous to expect the employer to have taken steps to remind the employee that the period prescribed in the Act had lapsed when it is clear that she herself took no steps to indicate to the employer that she wanted the contract of employment to subsist. That aside, the requirement to give notice, though laudable, is likely to import uncertainties into the clear provisions of the Act.”

It is therefore my considered view that there are no prospects of success were the application to be granted. The application for condonation of the late filing of an application for review ought to be dismissed and costs must follow the cause.

In the result, the following order is appropriate:

The application for condonation of the late filing of an application for review is hereby dismissed.

Applicant to meet Respondent’s costs.