Safeguard Engineering (Private) Limited v Abel Hogo

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/02/2016
HARARE, 25 NOVEMBER 2015 &
8 JANUARY 2016
CASE NO LC/H/APP/1015/2015
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/02/2016

HARARE, 25 NOVEMBER 2015 &		   CASE NO LC/H/APP/1015/2015

8 JANUARY 2016

In the matter between

SAFEGUARD ENGINEERING						APPLICANT

(PRIVATE) LIMITED

Versus

ABEL HOGO								RESPONDENT

Before the Honourable L M Murasi J

For the Applicant      B Chidziva (Legal Practitioner)

For the Respondent   J B Chaka (Legal Practitioner)

MURASI J:

This court dismissed the applicant’s appeal against the decision of NEC for Engineering Industry. The applicant is dissatisfied with the decision and seeks to approach the Supreme Court. This is therefore an application for leave to appeal to the Supreme Court in terms of section 92 F of the Labour Act [Chapter 28:01].

The facts in this matter are largely common cause. The respondent and applicant were embroiled in a labour dispute which culminated in it being referred to conciliation. The result was that the parties agreed to resolve this dispute and the respondent was reinstated. The respondent was made to sign a fixed term warrant. At its expiry in August 2012, the respondent refused to sign a new contract alleging that he was on a contract without limit of time. The applicant did not press the respondent into signing the new contract but continued to remunerate the respondent without any written contract. This status quo continued until May 2013 when the applicant decided to take the matter to the NEC alleging that the respondent was guilty of misconduct. The disciplinary committee found in favour of the respondent. An appeal within the NEC structures did not yield the desired result and the applicant sought relief from this court. This court dismissed the appeal and the applicant intends to approach the Supreme Court on appeal.

The applicant’s grounds of appeal are as follows:

That the Honourable Court grossly misdirected itself on the facts such misdirection amounting to a misdirection at law in dismissing the applicant’s appeal and upholding the decision of the General Engineering Committee that the respondent was on a contract without limit.

The Honourable Court misdirected itself in failing to appreciate that the respondent was on a fixed term contract which terminated by effluxion of time.

The Honourable Court grossly misdirected itself on the facts such misdirection amounting to a misdirection at law in failing to appreciate that the respondent repudiated his contract of employment when he refused to sign a new contract of employment.

Mr Chidziva for the applicant stated that he largely abided by the documents filed of record. He submitted that the respondent was employed on a fixed term contract from June 2012 to August 2012. It was further submitted that after the expiry of the fixed term contract in August 2012, the respondent continued to be in the employ of the applicant on the same terms and conditions even if he refused to sign any new contract. It was argued that the initial committee which heard the matter fell into error in arriving at the conclusion that the respondent was a permanent employee and by extension this court did the same by endorsing the decision of the lower tribunal. It was further argued that a different court was likely to arrive at a different decision on the same facts.

Mr Chaka for the respondent also stated that he abided by the documents filed of record. He further stated that the applications for leave to appeal should not be made simply because the Rules of the court permitted such applications to be made. He submitted that such applications should be made where there are prospects of success on appeal. In casu, it was argued that there were no reasonable grounds on which the Supreme Court would interfer with the decision of the court. Mr Chaka further submitted that after the expiry of the fixed term contract in August 2012, the respondent continued working for the applicant without any fixed term contract. Apart from that, evidence from one of the employees before the hearing committee had confirmed that the respondent was indeed a permanent employee. Mr Chaka further stated that the letter written by the applicant to Edgars Stores Limited confirming the respondent as its permanent employee was further evidence of the status quo.

In determining applications of this nature the applicant has to show that it has prospects of success on appeal.  Put differently, the applicant has to demonstrate in what manner the court misdirected itself in arriving at the decision that it did. MALABA DCJ had this to say in Sheckem Barrister Ngazimbi v Murowa Diamonds (Pvt) Ltd SC 27-13 at page 3 of the cyclostyled judgment:

“The purpose of requiring leave before noting an appeal to be given by the President of the Labour Court or upon refusal, by the judge of the Supreme Court in terms of section 92 F (2) of the Act is to prevent appeals not based on questions of law getting to the Supreme Court. The right to appeal given by section 92 F 91) is a limited right. The exercise of it is made conditional upon leave being granted.”

This application presents an interesting scenario. The applicant alleges that the respondent was employed on a fixed term contract. In terms of the applicant’s second ground of appeal, the contract “terminated by effluxion of time”. If this was indeed the case, the applicant would not be making such application for leave to appeal to the Supreme Court. It is the applicant who “dragged” the respondent to the NEC for the Engineering Industry. The applicant’s letter to the NEC was that the respondent was “refusing to obey a lawful order” by not signing a new contract of employment. The applicant must have taken the respondent to be its employee at the material time. The matter was set down for hearing. During the hearing, the applicant’s Human Resources Manager gave evidence to the effect that the respondent was a permanent employee. The NEC took this evidence as being correct and gave a determination that this was the position.

Mr Chidziva’s reaction to the above finding by the NEC defies logic to say the least. Asked by this court what the NEC should have done with the piece of evidence given by the Human Resources Manager, he stated that the committee “should have probed further”. This was evidence being given by the applicant who had brought the matter before the NEC.

It is trite that an applicant’s case falls or makes it on the strength of the Founding Affidavit filed on its behalf. The following excerpts appear from the affidavit filed by Berington Nhepera:

Paragraph 5.6

“Due to the respondent’s refusal to enter into a fixed term contract or any contract with the applicant for that matter, the applicant decided to terminate the employment relationship.”

Paragraph 5.7

“Without the benefit of legal advice, the applicant instituted disciplinary proceedings against the respondent alleging that he had refused to follow a lawful order to sign a contract of employment. The importance of this fact is that since the respondent was on a fixed term contract which expires by effluxion of time there was no need to discipline him.”

Paragraph 5.16

“Given the fact that the contract had expired, it was not even necessary for the applicant to take disciplinary action against the respondent.”

Paragraph 5.19

“Having refused to enter into a fixed term contract with the applicant, the respondent ceased to be employed by the applicant. There ceased to be any employer-employee relationship.”

Paragraph 5.20

“It is submitted that the contract between the applicant and respondent terminated by effluxion of time. Further the respondent defied a lawful order.”

Nothing is more confusing than the applicant’s story and how it relates to the facts and the decision taken by the NEC. The first question that arises is why the applicant continued to remunerate the respondent if the contract had expired due to effluxion of time. Mr Chidziva made submissions to the effect that the respondent continued to be employed on the same conditions as those of the expired contract. That is clearly inconsistent with the Founding Affidavit whose portions have been quoted above. The applicant has not clearly explained what it meant by “without the benefit of legal advice.” What is clear is that the appeal that was placed before this court was a result of the applicant’s machinations. This led to a result which was not favourable to the applicant. The applicant seems to regret the filing of the application to the NEC in first place. Those must be regarded as crocodile tears. The applicant brought the misery on itself. The evidence before the NEC showed the respondent to be a permanent employee, that is, from the evidence of the Human Resources manager. The, NEC could not have ignored this piece of evidence coupled with the evidence of the letter written to Edgars Stores Limited. The applicant’s heads of argument state the following:

“… neither does he become a permanent employee because a fellow employee says so.”

This submission loses it completely. It would have been different if the applicant was saying that the employee who gave that evidence was not employed in that position and could not positively give the company’s correct position on that particular issue. This has not been stated in that manner.

The applicant’s application is marred by clearly inconsistent submissions. The applicant refers to the applicant “dismissing himself”, “defying a law order” and that his contract of employment “expired due to effluxion of time.” The applicant has produced a “mixed bag” of issues. What this court dealt with was an appeal from the decision of the NEC. This court upheld the decision. The applicant has been unable to demonstrate in what manner this court “misdirected” itself in the decision that it arrived at.

GARWE JA had this to say in Fiona Chikurunhe & 234 Ors v Zimbabwe Financial Holdings SC 10-08:

“The party seeking leave must show inter alia that he has prospects of success on appeal. In other words, leave is not granted simply because a party has sought such leave.”

In casu, the applicant has not demonstrated the prospects of success it has on appeal. The applicant has been unable to show in what manner the court misdirected itself.

In conclusion the court is of the view that the application for leave to appeal to the Supreme Court is devoid of merit and is accordingly dismissed with costs.

Kantor & Immerman, applicant’s legal practitioners

Mawire J T & Associates, respondent’s legal practitioners