Tariro Shumba v Powertel Communications (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 11 JULY, 2025
JUDGMENT NO. LC/ H/270/25
CASE NO. LC/H/424/25
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 11 JULY, 2025

AND

30 JULY 2025

JUDGMENT NO. LC/ H/270/25

CASE NO. LC/H/424/25

TARIRO SHUMBA	APPLICANT

POWERTEL COMMUNICATIONS	RESPONDENT (PRIVATE) LIMITED

Before the Honourable G. Musariri, Judge:

For Applicant	- D. Ndakwena and G. Majirija, Attorneys

For Respondent	- H. Basket, Attorney

MUSARIRI, J:

Applicant applied to this Court for reinstatement of the abandoned matter LCH 268/25. The application was made in terms of Rule 36 of the Labour Court Rules, 2017. Respondent opposed the application.

Background

On 6 December 2024 Arbitrator F.V Maronyika issued an award which dismissed applicant’s employment claims against respondent. Applicant appealed the award to this Court. The appeal was struck off on 25 February 2025. Applicant then filed an application for condonation of a belated appeal under reference LCH 268/25. Respondent opposed condonation and it became necessary to file heads of argument. Applicant failed to file heads timeously. As a result the

1

H/270/ 25

Registrar of this Court deemed the application (for condonation) as abandoned and informed the parties accordingly. On 16th May 2025 applicant filed the present application for reinstatement.

Applicant’s case

The applicant’s founding affidavit stated that;

“10. I state that the Respondent filed its notice of opposition on the 15th April 2025 and as the Applicant’s Legal Practitioner I prepared the Applicant’s heads of argument. The heads of arguments were supposed to be filed on the 2nd of May 2025. However I failed to file the same on the 2nd of May 2025 because I had travelled to Bindura Magistrates Court where I was attending a criminal matter.

11. I was mistaken as to the last day for filing the Applicant’s heads of argument and then attempted to do so on the 5th of May 2025 wherein the same where rejected by the Registrar on the ground that they were filed out of time. I therefore state that this explanation for not filing Applicant’s heads of argument within the required time frame coupled with the immediate reaction by filing this application for reinstatement should be considered reasonable to warrant this Honorable Court’s indulgence to allow the Applicant to file her heads of argument and have the application for condonation determined.

13. The issues raised in the application for condonation by the Applicant necessitate the court’s interference to grant the indulgence sought. The Applicant attached the intended appeal with valid grounds of appeal wherein Applicant takes issue with the Arbitrator’s finding in particular on the finding that she failed to prove that the conduct of the Respondent through the Acting Managing Director had made the employment intolerable. Such finding was clearly contrary to the evidence that was presented before the Arbitrator. The Applicant clearly proved that she was made to be redundant when the Acting Managing Director took all the work that she was supposed to do. That evidence was not even disputed by the Respondent and it was a serious misdirection by the Arbitrator to then find that the Applicant failed to prove constructive dismissal. This

shows that the application for condonation that was deemed abandoned has prospects of success.

15. Thus, by ignoring the provisions of the CBA and made a finding that there was no legal basis for the Applicant to claim compensation for the period she worked in excess of the maximum required period, the arbitrator grossly misdirected herself. This also shows that the intended appeal has prospects of success, which in turn shows that the application for condonation has prospects of success.”

Respondent’s case

The Respondent’s opposing affidavit countered thus;

“9. The deponent’s explanation for the failure to file heads of argument is vague, inadequate and does not amount to a reasonable explanation. He merely states that there was a miscalculation of the filing deadline but does not disclose what led to that miscalculation. He does not explain whether the error was due to an incorrect interpretation of the rules, a failure to properly record the date of service of the Respondent’s Notice of Opposition or an administrative oversight by someone within his legal practice. Without clarity on what specifically caused the miscalculation, the court is left without any factual basis to assess the nature of the error, whether it was excusable and whether it arose from negligence, oversight or inadvertence.

15.This is denied. As outlined above, the intended appeal does not raise any issues of law but merely challenges the factual findings made by the arbitrator. Notably there was no evidence led before the arbitrator to support a finding of intolerable conduct on the part of the Respondent, through its Managing Director. Furthermore, the Applicant fails to demonstrate how the conduct of the Managing Director, such as convening meetings or

allegedly taking over certain duties, amounted to such conduct. The Applicant does not specify which duties were taken over, nor how this conduct rendered the employment relationship intolerable. There was no evidence for the Respondent to dispute.

26. Regarding compensation, the Arbitrator considered the Applicant’s claim to be paid a salary equivalent to the substantive position and found that she had been paid an acting allowance, in line with section 22(11) of the CBA, which provides for an allowance approved by the employer rather than full remuneration for the permanent post.”

Analysis

Default

The applicant’s attorney deposed on oath that he miscalculated the deadline for filing applicant’s heads of argument. Apparently he reckoned that the deadline fell on Monday 5th May 2025 instead of Friday 2nd May 2025. Respondent should have given more detail as to how the error arose. However the error involving one working day cannot be considered as gross.

Prospects

Applicant’s founding affidavit alleged that the acting Managing Director took all the work that she was doing. She argued that the Arbitrator failed to find that the acting MD’s conduct amounted to constructive dismissal. The arbitrator found as follows:

“The claimant has to prove the intolerability which was caused by the interview advertisement, feedbacks, the unprocedural calling of management meetings and the purported body language where the managing director would face away the claimant whilst she would be addressing him. There must be a fundamental breach of an express contractual term of trust and confidence. The claimant did not provide substantive evidence on the intolerability caused by the reasons cited above.”

The claims made by the applicant were not substantiated as correctly found by the arbitrator. The applicant made claims for compensation at the salary of the company secretary for her stint as acting company secretary. The arbitrator correctly dismissed the claims because applicant was paid an acting allowance. This issue is covered by the Collective Bargaining Agreement: Zimbabwe Electricity and Energy Supply Industry S.I. 01/08 which provides that;

“9(3) Notwithstanding the provisions of this section-

(a) …

(b) the maximum period for which an employee may be appointed to act or continue acting in a vacant post shall be twelve months, after which such post shall be filled in competitively by a substantive appointment.

22(1) Subject to the provisions of this section, any employee appointed to act in a senior post in terms of section 9 shall be paid an acting allowance at the rate approved by a Company from time to time.”

The provisions show that there is no basis for a claim beyond the acting allowance.

Conclusion

Guided by the dicta in the case of Doves v Harare SC 64/23 Paragraph 18, this Court concludes that;

The explanation for default is plausible; but

The prospects of success on the merits are poor.

Accordingly the Court is not persuaded to exercise its discretion in favour of reinstatement.

Wherefore it is ordered that,

The application for reinstatement be and is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E