Accolade Holdings (Private) Limited v Charles Dinyero & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/431/2014
HARARE, 20 JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/431/2014

HARARE, 20 JUNE 2014 &			          CASE NO LC/H/429/2010

18 JULY 2014

In the matter between:

ACCOLADE HOLDINGS (PRIVATE) LIMITED		APPLICANT

Versus

CHARLES DINYERO						1ST RESPONDENT

And

ALPHONCE GUVI							2ND RESPONDENT

Before The Honourable L Kudya	:	Kudya

For the Applicant		B Magogo	(Legal Practitioner)

Respondents in Person

KUDYA J:

This is an application for rescission of a judgment handed down in a case where the respondent employees had applied for quantification of damages due to them following an order by the Labour Court that they be reinstated to their original positions without loss of benefits and pay.

Background to the matter is that the respondents who were in the applicant’s employ were charged with acts of misconduct at the workplace. Following their disciplinary hearing they were dismissed from employment. They appealed against their dismissal and ended up at the Labour Court appealing against that dismissal. At the Labour Court the now applicant defaulted and the respondents got a default judgment setting aside their dismissal and reinstating them to their original positions without loss of pay or benefits alternatively that they be paid damages in place of reinstatement. Reinstatement did not take place and the respondents ended up approaching the Labour Court again this time for the quantification of the award which had set aside their dismissal.

Once again the applicant defaulted the quantification hearing and the court once more gave a default award in favour of the respondents. It is that default award which irked the applicant and prompted it to apply for rescission in the instant matter.

The basic grounds for the instant application are that the applicant was not in wilful default as no proper service had been effected on it. Secondly, the applicant maintained that it has strong prospects of success on the main claim taking into account that no cogent evidence was led to prove the damages which the respondents were awarded.

In response the respondents maintain that the applicants were in wilful default since service was effected at the place where they used to operate from and to the best of the respondent’s understanding the company Accodale Holdings and ONP Plastics were one and the same thing as borne out by the interchangeable use of their names on the respondent’s payslips and other work related documents.

On the merits the respondents argued that the applicant’s case is not merited because the award of damages was granted according to what the respondents’ payslips say they earned as well as per the affidavits which they filed of record to support the claims.

The law relating to such applications is quite clear and deserves no restatement. Suffice to say that the two critical issues in such a case are the reasons for the default and the prospects of success on the merits. Each construct will be addressed in turn.

Reason for default

The applicant maintains that Accodale and ONP Plastics are different companies because at some stage after the respondent’s dismissal the ONP which was a subsidiary of Accodale attained individual corporate status after it was so incorporated in terms of the Companies Act. It however continued trading from the premises where Accodale used to conduct its business from. It therefore maintained that the return of service in the form of a sworn affidavit by the Labour Court driver was not proper service as process was not served on the correct company.

The respondents could not contest the fact save to maintain that to the best of their understanding they did not believe that there was indeed the separation argued by the applicant taking into account that all previous correspondences used the names interchangeably. The applicant went further and filed the ONP Certificate of Incorporation to demonstrate the different corporate status of the two entities. It also cited extensive authority on the concept of separate legal status as well as on what at law is deemed good and sufficient service.

A reading of the Certificate of Incorporation shows that as at time of the quantification the ONP to who Gata (the Labour Court driver) tried to effect service had long been incorporated into a separate legal entity though trading from the same previous premise. If one also looks into the issue of the change of the address for the appellant it was incumbent upon the applicant to notify the respondents of its change of address in terms of Rule 7 (3). To that extent where it failed to do so it cannot be heard to complain that it was not served because such an omission is what impacted on it. In the result the court is persuaded that notwithstanding the alleged new incorporation of ONP it is clear that the applicant was in wilful default as it occasioned the defective service that ensued in the matter.

Merits

On the merits of the case what is clear is that the order was granted without a thorough ventilation of the issues now raised by the applicant. This was occasioned by the fact that the decision was effectively a default decision where the court did not deem it necessary to delve into the niceties of the quantification award as whatever the then applicants had put forward had no one to contest due to the applicant’s default. To that extent it would be just and proper that the issues be properly ventilated before an award is made in the matter.

Taking into account the fact that it is the cumulative effect of the reasons for default and the extent of merit on the main matter it is the court’s view that notwithstanding the not so good reasons for default the merits of the case dictate that the quantification claim be argued properly and ruled upon.

In the result the rescission application succeeds.

IT IS ORDERED THAT

The application for the rescission of the judgment of 28 June 2013 being merited it be and is hereby allowed.

The quantification claim has to be reset before the three judges who presided over the case and decided on 28 June 2013 so that the matter can be dealt with on the merits.

Each party to bear own costs.

Makuwaza & Associates, applicant’s legal practitioners