T. Munyanyi N.O. v Tarcon (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/212/2020
HARARE, 18 FEBRUARY, 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/212/2020

HARARE, 18 FEBRUARY, 2020		     	     CASE NO. LC/H/LRA/799/18

AND 9 OCTOBER, 2020

In the matter between:-

T. MUNYANYI N.O.						Applicant

Versus

TARCON (PVT) LTD						1st Respondent

KILLIAN MAUNGA						2nd Respondent

Before The Honourable L. Hove, Judge:

For Applicant:				In Person (Labour Officer)

For 1st Respondent:				Mr C.T. Tinarwo (Zimudzi & Associates)

For 2nd Respondent:	Mr M. Mavhiringidze (Mavhiringidze & Mashanure)

HOVE J:

This is an application for an order in terms of section 93 (5a) (a) and (b) of the Labour Act [Chapter 28:01] (the Act).

The 1st and 2nd respondent shall be referred to as the employer and the employee respectively.

The brief facts are that a dispute arose between the parties and the matter was referred for conciliation before the applicant, the parties failed to be reconciled and a certificate of no settlement was issued. This was on 18 June 2018.

Thereafter, the parties and the applicant agreed on time lines within which both parties would file their written submissions. The employee filed its submissions before the applicant in terms of their agreement on 26 June 2018 claiming a total of $27 885. The employer was supposed, in terms of the agreement between itself, the applicant and the employee, to file its own submissions but it did not. No explanation was given for the default.

The employee eventually applied for the matter to be resolved on the basis of the oral submissions made during conciliation proceedings before the applicant on 18 June 2018.

The applicant then proceeded to issue a ruling after considering the record before him, the employee’s submissions during conciliation and the certificate of no settlement. This was on 18 October 2018. In terms of that ruling, arrear salaries in the sum of $13 650 were granted. Service pay in the sum of $10 728, and unpaid leave days were also allowed in the sum $3 510. A total amount of $27 888 was to be paid to the employee by the employer.

When the applicant approached the Court in terms of section 93 of the Act seeking the registration of the draft ruling, the employer was cited in compliance with the provisions of section 93.

The employer filed a notice of opposition and heads of arguments.

It raised preliminary points and the preliminary points raised by the employer are that;

1) 	The applicant is suing an incorrect legal persona

2) 	The court has no jurisdiction.

3)	The applicant had no jurisdiction to entertain the matter.

4)	The applicant does not have capacity to institute the current proceedings.

5)	The applicant failed to cite the employee.

6)	The applicant breached the requirements of the audi alteram partem rule.

The court will deal with the points raised in limine first before (depending on the court’s findings in relation to the points in limine) proceeding to deal with the merits.

Whether or not the applicant is suing an incorrect legal persona

The employer argues that it is a separate legal entity from Tarcon Limitada. A company in Mozambique which, it was argued, is the employee’s employer.

The employee however produced a contract of employment between himself and the employer before the applicant. By deciding to ignore the proceedings before the applicant, the employer denied himself the opportunity to challenge the contract of employment produced before the applicant. The applicant made a factual finding that the parties were in an employer/employee relationship.

The court perused the agreement which is part of the record and finds that the agreement is between Tarcon (Private) Limited and Killian Maunga. It is not with Tarcon Limitada.

There is therefore no substance in the point in limine and the court dismisses it as being without merit.

Whether or not the court has jurisdiction

The argument that the court lacks jurisdiction is premised on the allegation that Tarcon (Pvt) Limited is a separate legal entity from Tarcon Limitada and that the employee was employed by Tarcon Limitada.

There is however no evidence placed before the court to show that the employee was employed by Tarcon Limitada. A bold assertion is made and it is not supported by any evidence. The agreement produced before the applicant shows that the employee was employed by the employer who is the 1st respondent. No irregularity has been shown in the manner in which the applicant dealt with the matter. The court has jurisdiction over the matter by virtue of section 3 (1) of the Labour Act [Chapter 28:01] (the act) which provides as follows;

“This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the constitution”.

The employee produced a contract of employment which shows that he was employed by the employer.

The position of law is very clear that he who alleges must prove. If the employer alleges, as it does, that it was not the employer and that the employer was Tarcon Limitada then it must prove. No proof has been brought before the court.

The employee submitted that he was employed by the employer and that he was only seconded to the Mozambican company. He submitted, and the court agrees with him that secondment does not invalidate the original contract of employment. See in this regard the cases of;

Shumba v Commercial Bank of Zimbabwe HH 100/06

Dairiboard Zimbabwe Limited v Muyambi 2002 (1) ZLR 448 (5)

Chido Murombedzi vs SMM Holding (Pvt) Ltd,

The court therefore has jurisdiction over employers and employees in Zimbabwe except those excluded in terms of section 3 (1) of the act. The point in limine lacks merit and it is dismissed.

Did the applicant have jurisdiction

It has been raised as a point in limine that the applicant lacked jurisdiction to entertain the matter. This, it was argued, is so because the employer is a member of the National Employment Council (NEC) for the Construction Industry and the collective bargaining agreement for the industry provides for disputes to be dealt with in terms of the Collective Bargaining agreement (the CBA). It was therefore not proper for the applicant, a labour officer, to assume jurisdiction over the matter.

The employee submitted that while it was true that disputes in the industry are dealt with under the provisions of the CBA, it is not true that all employees in the Construction industry fall under the CBA, some employees are NEC graded but managerial employees are not NEC graded. The employee submitted that he was a managerial employee and he was not NEC graded. He did not contribute to the NEC and it was therefore proper to refer the dispute to the Labour Officer since he did not fall under the NEC.

The employer has not challenged these averments and the Court finds no merit in objecting to the applicant’s jurisdiction.

Whether or not the applicant has the capacity to institute the proceedings

The employer argued that the applicant cannot sue in his personal capacity, he lacks the capacity.

The applicant ought to have indicated that he was instituting the proceedings in his official capacity but he did not. He sought for an amendment for the court to condone his failure to indicate that he was filing the application in his official capacity.

The court has a discretion to either allow or disallow an applicant to amend or correct a citation where a party has been cited incorrectly as in casu. The court must, in the exercise of its discretion, consider the interests of justice. In the case of Four Tover Investments (Pvt) Ltd v Andre Motors 2005 (3) SA 3a NPD the court held that;

“an application for amendment will always be allowed unless it is mala fide or would cause prejudice to the other party which cannot be compensated for by an order for costs or by some other suitable order such as a postponement”.

The employer has not alleged any mala fide and it has not argued that it would suffer any prejudice should the court grant the application to amend the citation. It is also in the interest of justice that the matter be decided not on procedural anomalies but on the merits. The court thus condones the wrong citation and grants the application to correct the wrong citation of T. Munyanyi to T. Munyanyi N.O.

Failure to cite the employee

Failure to cite the employee has since been regularized by the court when it granted an application for joinder and the employee is now the second respondent.   The preliminary point raised in this regard was overtaken by events and falls by the way side.

Whether or not the applicant breached the audi alteram partem rule

The parties were called to a reconciliation hearing and both parties attended before the applicant when conciliation was unsuccessful, the parties agreed on time lines within which both the employer and the employee would file their submissions before the applicant.

The employee filed their claim as agreed and the employer decided not to file their response as had been agreed. The employer and his legal practitioner had agreed to filing their response by a certain date but they failed to do so. The record shows that this is so. The record shows that after they had failed to file their papers, the employee’s legal practitioners wrote to the employer’s legal practitioners as follows;

“we refer to the above matter and in particular to the time lines that we agreed before the conciliation in the above mentioned matter.

We note with great concern that despite committing to file your response by the 12th of July 2018 to our statement of claim, you have failed and neglected to file same.

We call upon you to file your response within 48 hours. Failure of which we will inform the conciliated to treat the matter as unopposed so that he can continue to write his ruling.

We await your prompt response”.

The employee had waited from 12 July 2018 to 16 August 2018 a period of over a month to receive a response and when it became apparent that no response was coming, they wrote the above letter, prompting the employer’s legal practitioner to do the right thing, to respond as per the agreement during the conciliation proceedings. Legal practitioners must be honourable and be bound by their word. Legal ethics demand this  otherwise the practice of law would become unnecessarily onerous.

The employer’s legal practitioner ignored this reminder. The legal practitioner for the employee proceeded to request the applicant to treat the matter as unopposed. The applicant then made a draft ruling on the basis of the conciliation record on 3/10/20.

Up to that date, in October, the employer had completely ignored the dispute and did nothing save to attend the conciliation proceedings.

The applicant then applied for the ruling to be confirmed. In opposing the application, the employer raises a preliminary point that the applicant failed to observe the rules of natural justice. It was argued that the applicant made the ruling in the absence of a hearing and thus violated the audi alteram partem rule. It was also argued that the party or parties should be given an opportunity to be heard. It was further argued that the applicant made a ruling on the basis of just the employee’s claim and did not hear the employer.

It is the correct position of law that,

“The audi alterum partem rule holds that a man shall not be condemned without being given a chance to be heard in his own defence………..fairness is the overriding factor in deciding whether a person may claim a legitimate entitlement to be heard.”

This is trite and was stated in the case of Mangenje v TBIC Investments (Pvt) Ltd & others HH 377/13.

The record shows that the parties agreed to the time lines and the employer was given, through a letter to its legal practitioners, a further indulgence that they file their papers within 48 hours. The employee’s legal practitioner then advised that should they fail to take the opportunity to file their papers, they would apply to the applicant to treat the matter as unopposed. The employer ignored this. No application was made before the applicant for him to rescind the ruling and give it an opportunity to be heard. The applicant treated the applicant and the process before him with contempt. It thus denied itself the opportunity to be heard. It had full knowledge that it was supposed to file opposing papers by 12 July 2018 but did not do so. It ignored the letter reminding it and the warning that the matter may be treated as unopposed. The employer denied itself the opportunity to be heard. It made a choice not to be heard and cannot be heard to complain.

In the case of Dombodzvuku v CMED SC 32/12, the court said a litigant who has full knowledge of a hearing, (in this case the need to file submissions) and decides not to attend the hearing (in casu to submit his side of story) takes a calculated risk that the matter would proceed in their default. They declined an opportunity to be heard. They can hardly complain that they were not heard. In Reckistt & Colman V. C. W. I. U and others (1991) 12 ILJ 806 (LAC) It was also stated that an employee should not default if he or she has full knowledge of the proceedings. If they default, they are taken to have waived their right to be heard. It was further stated that such a party can hardly allege that the proceedings and the outcome was unfair.

In any event, the law will help the vigilant and not the slaggard. See Ndebele v Ncube 1992 (1) ZLR 288.

The applicant ignored the process they had agreed to follow after the certificate of no settlement was issued. In Brake & Clutch v Nyana SC 42/200. It was noted that:

“This case reinforces what a number of other Supreme court judgments have emphasized, namely that if there is a process to be followed, it cannot just be ignored…”.

The employer made its own bed and must surely lie in it. The point in limine is without merit.

The employer in the affidavit filed in its behalf opposes the application on the same points it raises as points in limine, that the employee was not its employee and that the ruling was made without it being heard, that a default decision was made.

The employer ought to have filed its opposing papers as had been agreed. Its failure to file the papers by 12 July 2018 meant that they were not opposing the claim and a ruling was made.

Considering how the parties understood the process that they were engaged in, there was no unfairness in the process that led to the draft ruling. In any event, the honourable Chief Justice in the case of Isoquant Investments (Private) Limited t/a Zimoco v Memory Darikwa CCZ 6/20 has since clarified the process before the Labour officer. The honourable Chief Justice stated that;

“He (Labour Officer) or she is required to make a “draft ruling” on the merits of the dispute as gathered from the conciliation process and after issuing a certificate of no settlement”.

There is no dispute that the draft ruling in casu was made after the conciliation process based on the conciliation record. The Labour Officer’s conduct can thus not be faulted by alleging that the other party was not heard after the issuance of the certificate of no settlement and the attempts to conciliate.

The record shows proof in the form of an agreement that the employer employed the employee. The allegation that the employee was employed by Tarcon Limitada was not proved. It is therefore dismissed as unproved.

The preliminary points having failed, the defence on the merits also fail for the same reasons.

Costs

The manner in which the 1st respondent has conducted this matter and its defence clearly show that it knows it has no defence and it is bent on wasting everyone’s time and especially the Court’s time. The 1st respondent is merely seeking to delay the inevitable and to delay the finalization of this matter. Needless to say, the 2nd respondent suffers the most prejudice. The Court must frown upon this manner of conducting proceedings before it.

Litigants who made bold assertions which they do support but end up delaying finalization of matters must be warned that such conduct is unacceptable and may be met with an award of costs on a higher scale.

In casu awarding costs on a higher scale will meet the justice of the case.

The application is therefore granted.

The ruling by the Labour Officer T. Munyanyi be and is hereby confirmed in the following terms;

The employer is to pay the employee,

1) 	arrear salaries in the sum of $13 650.

2)	service pay in the sum of $10 728.

3) 	cash in lieu of leave in the sum of $3510

The employer pays the costs of this application in the sum of $41.00.

The employer pays the employee’s costs on the higher scale.

Zimudzi & Associates -	1st Respondent’s Legal Practitioners

Mavhiringidze & Mashanyare – 2nd Respondent’s Legal Practitioners