Tinashe Mutasa & 9 Others v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/660/2016
HARARE, 4 OCTOBER 2016 &
CASE NO LC/H/APP/1273/2015
21 OCTOBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO LC/H/660/2016

HARARE, 4 OCTOBER 2016 &			       CASE NO LC/H/APP/1273/2015

21 OCTOBER 2016

In the matter between

TINASHE MUTASA & 9 OTHERS						APPELLANT

Versus

DELTA BEVERAGES (PVT) LTD						RESPONDENT

CHIVIZHE J:

This is an application for condonation for late filing of Heads of Argument.  The application is opposed.

The Background Facts

The Applicants in this matter are former employees of the Respondent. There were employed in various capacities.  The Applicants were engaged on the basis of fixed term contracts which were renewed regularly.  The individual contracts of the Applicants were terminated on different dates in 2014 and were not renewed thereafter.  Irked by the non-renewal of their contracts the Applicants referred a claim for unfair dismissal to the Designated Agent of the National Employment Council for Food & Allied Substances.   When conciliation failed the Designated Agent issued a certificate of no settlement.   The matter was consequently referred to compulsory arbitration.   The terms of reference where for the Arbitrator to determine –

Whether or not the claimants (complainants) were unfairly dismissed.

Whether or not the deductions such as NSSA, Aids Levy and PAYE are consistent with permanent employees.

Whether or not the claimants (complainants) were employed as permanent or fixed term employees.

Whether or not the claimants (complainants) were being under paid.

Remedy thereof

The Arbitrator after considering the evidence and the submissions made by the parties concluded that the claims by the Applicants, of having been engaged as permanent employees, of an unfair dismissal and underpayment of wages were all without merit.  The Arbitrator consequently dismissed all the claims.

The Applicants were aggrieved and filed an appeal against the arbitral award.   Because however they were filing the appeal outside the time frames set by the Rules of the Court Applicants filed an application for condonation for the late filing of an appeal.  The application was opposed by the Respondent.   That application was initially set down for hearing on the 20th of November, 2015.  The matter was postponed sire die   pending the hearing of the present application placed before me.

Application for Condonation of Late Filing of Heads of Argument

The Applicants having filed an application for condonation of late noting of an appeal on the 23rd July 2015 the Respondent then filed and served its Notice of Opposition on the 17th of August, 2015.   In terms of the Rules of court the Applicants were required to have filed their Head of Arguments 14 days after receipt of the Notice of Opposition. The Applicants were therefore required to file heads at the latest by the 4th of September, 2015.  Having failed to file the heads by that date the Applicants seek in this application for the court’s condonation for the failure to file heads.

Factors to be Considered

The factors to be considered in an application for condonation are well established.  They have been stated in many decisions.  The factors include the following:

the degree of non-compliance with the rules

the explanation thereof

the prospects of success on the merits

the importance of the case

the degree of prejudice to the Respondent

the convenience to the court and

the avoidance of unnecessary delay

See Jensen vs Cavalos 1993(1) ZLR 216(S) and Mazvimbakupa v City of Harare HH 92/05

The Applicants submit through the Founding Affidavit of Felicity Ndou, their legal practitioner of the record, that the application for condonation is with merit.   Whilst the heads were due on the 4th of September, 2015 the Heads of Argument were filed on the 23rd of October, 2015.  The period of delay is therefore relatively short.  The explanation tendered for the delay is that the legal practitioner was on time off when the Notice of Response was filed and served by the Respondent.  Upon resumption at work on the 8th of October she was not alerted to the fact that a response had been filed.  The Notice of Response had through an error or oversight been filed away in the lawyer’s office.  The legal practitioner therefore sincerely believed that there was no opposition to the main application.   She only realised her error on the 19th of October, 2015 when the clients came to pursue their matter.  She then realised that a Notice of Response to the main application had in fact been served on them.  In regards prospects her submission is that the proposed appeal has good prospects of success.

The Respondent is opposed to the granting of condonation as sought. The Respondent submits that the explanation tendered for the delay is inadequate and ought to be dismissed.  The court is also urged not to condone the apparent flagrant breach of the rules of court by the Applicants’ legal practitioners.  The Respondent referred to the matter in Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S).

It is very clear based on the papers before me that the delay in this matter is relatively short.  It is a period of over a month.  The explanation tendered for the failure to comply with the Rules of the Court however is however not convincing.  The record shows the Notice of Response was filed and served on the applicant’s legal practitioners on the 17th of August 2015  The Applicants’ legal practitioner has failed to explain why she failed to deal with the matter for the month and half she was in the office prior to taking her alleged time off.  Her explanation seems to only cover the period after her taking time off in the first week of October to the neglect of the earlier period.  She has also failed to take the court into her confidence by indicating the party/person in her offices who she claims “slotted the file with other files in the filing system and forgot all about it”.  Clearly a supporting affidavit deposed to explaining these facts was required to be placed before the court. This has not been done.  There is therefore clear evidence of lack of diligence on the part of the legal practitioner.  In such a case of flagrant breach of the rules where no acceptable/convincing explanation has also not been tendered the indulgence of condonation ought to be refused whatever the merits of the appeal/application may be.  The court was aptly referred by the Respondent to Kodzwa v Secretary for Health & Another (referred to supra).

The court might have been inclined, to, in the interests of justice and fairness, to overlook the unconvincing explanation because of the relatively short delay in the filing of the heads but as things stand even the prospects of success are also very dim.

The Applicants’ proposed appeal is hinged mainly on the finding by the Arbitrator that their claim of permanent employment was without merit.  The Applicants seek to attack the award on the basis that –

The continuous renewal of their fixed term contracts amounted to casualisation of labour

The Arbitrator had ignored crucial evidence that Respondent had flighted adverts for people to fill Applicants’ positions immediately after their contracts terminated

The Arbitrator erred in dismissing their claims for underpayment of wages.

I find it easier to address the second issue first.  The issue of legitimate expectation was in my view adequately addressed in the award.  The Arbitrator found that on the basis of case authorities  referred such a Kundayi  Magodora and Ors v Care International Zimbabwe SC 24/14 for an employee to sustain a claim of unfair dismissal one had to meet the two requirements as set  out  in  Section 12B(3)(b)(i) – (ii)  of the Labour Act [Cap 28: 01].  The first requirement is that one must prove that one had a legitimate expectation to be re-engaged and the second is that another person was engaged in one’s place.  The Arbitrator in this case found that the Applicants had failed to discharge the onus to prove other persons were employed by the Respondent when their contracts were not renewed,   In other words Applicants failed one rung of the test.

The Applicants in their proposed appeal seek to challenge the decision/award on the basis that the Arbitrator failed to consider evidence of flighted advertisements of their positions.  The issue is clearly being raised as an afterthought.  It has not been specifically pleaded to in Applicants’ papers, it is coming in through Applicants’ head of arguments.  Apart from that it would appear the issue was placed before the Arbitrator.  His findings were very clear that the claim of legitimate expectation was dismissed for lack of proof. The issue could not have been substantiated before the Arbitrator. The second ground clearly cannot succeed on appeal.

The issue of underpayment raised in proposed (3) was placed before the Arbitrator.  He again dismissed the claim for lack of proof.  He found as follows:

“The fourth issue concerning an allegation of underpayments was not proven by the claimants. It would appear such an issue could border on sour grapes. The claimants did not demonstrate in their submissions and evidence any cogent basis for claiming underpayments and hence such claim remains unproven.”

The Applicants seek to appeal on the basis that Arbitrator failed to consider their submissions that they were being underpaid.  In her founding affidavit Felicity Ndou submits as follows:

“8.3.	The learned arbitrator also erred by finding but that the claim for underpayment of wages by the applicants could not stand despite the fact that the applicants had submitted that they were not being paid according to the NEC salary schedule which gazettes the minimum salaries for the food and Allied Industries. At the time when the matter was heard before the Honourable Arbitrator, the applicants had failed to secure the salary schedule from the NEC but as from the time they started working for the respondent their salaries were below the NEC salary schedule.”

The Arbitrator found that in the absence of evidence he could not sustain the claims for underpayments.  The proposed ground is based on a bold submission made by the legal practitioner. The issue of underpayments however is an evidentiary issue. No indication is made as to any evidence having been placed before the Arbitrator who then failed to consider such evidence. The ground is clearly meritless.  It has no prospects of success at all.

The final but most important ground raised relates to the nature of the contract.  The Applicants propose to challenge the award on the basis that Arbitrator erred in finding that the Applicants’ contracts did not mutate to permanent contract where there was clearly evidence of casualisation of labour.  The Arbitrator dealt succinctly with the point.  He found on the basis of the contract documents the Applicants were employed on fixed term contracts of employment and not permanent contracts of employment.  He further reiterated the position at law that the tribunals as indeed courts should not go outside the actrual contracts to create new contracts for the parties.  He referred to the celebrated case in Kundayi Magodora & Ors v Care International Zimbabwe SC 24/14.  On this basis the Arbitrator dismissed the Applicants’ claim of having been employed as permanent employees.

In regards the argument sought to be presented which is based on the continuous renewal of fixed term contract the position appears well settled.  The Supreme Court held in the matter of UZ UCF Collaborative Research Programme in Women’s Health v Shamuyarira SC 2010 (2) ZLR 127 that the fact of continuous renewal of a fixed term contract does not in itself result in the mutation of a fixed term contract to a permanent contract.  The Applicants once again have no prospects of success on that ground.

The Applicants having failed to tender a plausible explanation for the lack of compliance with the rules of court and also having dim prospects of success in the proposed appeal it follows that the application for condonation ought to fail.  Considering that it has had to incur further unnecessary costs through these two further applications (i.e. the application for condonation for late noting of an appeal which has been held in abeyance and the present application) the Respondent has asked the court to award costs on a legal practitioner and client scale.

Section 89 (3) of the Labour Act [Cap 28:01] provides that this court may make an order of costs.  Considerations of law and fairness however dictate that an order of costs on the ordinary scale should be awarded in this case. It is apparent the Applicants were aggrieved and genuinely believed the course of action they were taking would yield the desired results.  Their actions were not motivated by malice. Rather they seem to have suffered due to receiving bad advice from their legal practitioner.

In the circumstances the following order is made:

Application for Condonation of late Filing of Heads of Arguments is dismissed with costs at the ordinary scale.

Mugiya & Maderaga Law Chambers, applicant’s legal practitioners

Gill, Godlonton & Gerrans, respondent’s legal practitioners