Tanaka Takawira v New Ambassador Hotel

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/570/16
HARARE, 18 JULY 2016
CASE NO.
JUDGMENT NO. LC/H/570/2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/570/16

HARARE, 18 JULY 2016				     CASE NO. LC/H/APP/284/16

AND 23 SEPTEMBER 2016

In the matter between:-

TANAKA TAKAWIRA					Applicant

And

NEW AMBASSADOR HOTEL				Respondent

Before The Honourable E. Muchawa, Judge

For Applicant	In person

For Respondent	W.L. Chirongoma with Mr Mare (Human Resources Officer for respondent)

MUCHAWA, J:

This is an application for condonation of late noting of an appeal.

The pertinent facts in the matter are as follows:

The respondent appointed the applicant to the position of management trainee in human resources with effect from 10 September 2012.  It was a term of the appointment contract that on successful completion of the training programme the applicant would be appointed to the permanent position of human resources officer. The training programme was to run for eighteen months.

Before the training programme had elapsed the applicant was charged and thereafter dismissed in November 2013 over allegations of falsifying of documents and conduct inconsistent.  An appeal to the Chief Executive Officer was unsuccessful.  The matter ended up before an arbitrator who found that the applicant’s dismissal was unfair.  She ordered reinstatement with no loss of salary and benefits with effect from the date of suspension.

Alternatively damages in lieu of reinstatement were awarded,

The respondent noted an appeal against the arbitral award in this court.  The appeal was dismissed on the 10th of July 2015.  Following a refusal to reinstate the applicant by the respondent, applicant applied for quantification of damages before the arbitrator.

The quantified damages amounted to US$6 558.00 being;

Salary up to end of contract period			$3 703.00

Leave days							$   155.00

Damages for 6 months for loss of employment		$2 700.00

Following the quantification, the applicant proceeded in terms of section 98 (1) to submit the award for registration in the magistrates’ court for enforcement.  This application for registration was however withdrawn on the 16th of February 2016, a day before the hearing.

Meanwhile the respondent sought and was granted leave to appeal to the Supreme Court against this court’s finding regarding the unlawfulness of the verdict and impropriety of the dismissal penalty.

Pending too before this court is an appeal by the respondent against the quantification award.

The applicant now seeks to appeal against the quantification award too.

The broad principles to be considered in such an application are; the extent of the delay, the reasonableness of the explanation proffered for the delay and the prospects of success on appeal.  See Jensen v Accuralos 1993 (1) ZLR 216 (SC).  In addition questions about the importance of the case, the convenience of the court and the avoidance of unnecessary delay are also to be considered.  Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313.

I turn to apply the law to the facts of this matter.

Extent of delay

The quantification arbitral award was handed down on the 30th October 2015. The applicant only filed the current application for condonation on the 15th March 2016.

Rule 15 of the Labour Court Rules, SI 59 of 2006 provides that an appeal should be filed within twenty one days of the date the appellant receives the decision or award to be appealed against.

The applicant states that he received the award on the 30th October 2015.  The appeal should therefore have been filed by the 30th of November 2015.  This application is therefore some three months late.

Explanation for the delay

The applicant’s explanation for the delay is that as a self actor he ill advisedly applied for registration of the award for enforcement instead of immediately appealing against it.  It is stated that he got proper legal advice and noted there were irregularities needing to be appealed against, late.

The respondent dismisses this explanation as unreasonable.  It is argued that the applicant made a conscious decision to register the award and unnecessarily put the respondent out of pocket.  This application is alleged to be a mere fishing expedition wherein applicant is trying his luck.  It is put that the applicant is not a novice at litigation.

It is common cause that the applicant has been a self actor in all the matters outlined above.  The practice of the courts is to afford the self actor in litigation, a degree of tolerance, within permissible limits to eschew too rigid an adherence to procedural requirements in respect of such self actor.  Mwatsaka v ICL Zimbabwe 1998 (1) ZLR 1 (HC)

I find therefore that the explanation tendered is reasonable.

Prospects of Success

The applicant alleges that he has good prospects of success on appeal.  He makes the following allegations in his proposed grounds of appeal;

That the arbitrator failed to recognize that he was supposed to be a permanent employee by the time of his reinstatement on 14 August 2014 as the terms of the contract were that he would be on a permanent contract upon successful completion of the training programme.

That the arbitrator failed to realize that the calculation of back pay was in two components in terms of salary rates.

That the calculation of back pay was wrong as it should have been payable up to the date of the order of reinstatement.

In the appeal already filed by the respondent against this same quantification award, the issue raised is that the applicant is not entitled to an award of damages for loss of employment beyond the eighteen months training period. A further issue raised relates to the relevance of whether or not the applicant was going to successfully complete the training programme.

I find that in the proposed ground of appeal 1, the applicant is really joining issue with the respondent.  The question of the nature of the contract between the parties is a relevant issue which underpins the quantification process.  That is an issue where the court should exercise its mind with guidance from the case of Sithole v P.G. Industries (Zimbabwe) Ltd T/a African Lumber Company (Pvt) Ltd HB 4/09.  This calls for the court to interpret the terms of the contract of employment and establish whether to treat this as a trainee contract or a permanent contract.  That issue is already before the court in the respondent’s appeal under case LC/H/54/16.

The question of the applicable salary rate for the back pay is one in which the applicant may enjoy some prospects of success.  There is need for evidence to be led on the applicable salary rate.  In Ambali v Bata Shoe Company Limited 199 (1) ZLR 417 (SC) it was held that one is entitled to be paid the wages or salary he would have earned had his contract not been prematurely terminated.  The rate of salary is therefore an important determinant.

In Redstar Wholesalers v Mabika SC 52/05 Ziyambi JA held that the date to which back pay should be payable is the date on which the order of reinstatement is made.  The applicant therefore enjoys good prospects relating to the date to which back pay was made payable.

It would be convenient for the court to deal with all the issues relating to the quantification award at once as respondent has also filed an appeal against it.

Accordingly the application for condonation of late noting of appeal be and is hereby granted.

The applicant is allowed to file its appeal within 7 days of this judgment.