Green Fuel (Pvt) Ltd v Harald Reitbauer

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/232/16
HARARE, 17 FEBRUARY 2016
CASE NO. LC/H/APP/801/15
JUDGMENT NO. LC/H/232/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/232/16

HARARE, 17 FEBRUARY 2016			      CASE NO. LC/H/APP/801/15

AND 22 APRIL 2016

In the matter between:-

GREEN FUEL (PVT) LTD				Applicant

And

HARALD REITBAUER				Respondent

Before The Honourable E. Muchawa, Judge

For Applicant            Mr I Ahmed & applicant’s representative

For Respondent      Mr I. Ndudzo & Miss H Mazarura (Legal Practitioners)

MUCHAWA, J:

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

The respondent is a former employee of the applicant.  He was employed as a projects and construction manager when there was engagement with a view to terminate the contract by mutual agreement in 2014.  A letter capturing the purported terms of the agreement was written on the 31st October 2014 and the respondent ceased reporting for work.   A dispute arose relating to what was payable upon termination of employment which was referred to the Labour Officer then subsequently for arbitration.

The arbitral award was handed down on the 26th of April 2015.  The applicant wishes to appeal against the arbitral award but is out of time hence this application.

The law to be applied in such matters is trite.  The broad principles that I should consider were set out in the case of Jensen v Acavalos 1993 (1) ZLR 216 (SC).  These are; the extent of the delay, the reasonableness of the explanation given for the delay and the prospects of success on appeal.

I now turn to apply the law to the facts in casu.

Extent of the delay

An appeal against a decision of an arbitrator should be filed in the Labour Court, within twenty-one days from the date when the appellant receives the decision to be appealed against.  (Rule 15 of the Labour Court Rules Statutory Instrument 59 of 2006).

The applicant does not state clearly the date on which the arbitral award was received in its founding affidavit.  There is a mere reference to “soon after the applicant became aware of the arbitral award,” in paragraph 6 of the founding affidavit.

In paragraph B.2 of the applicant’s heads of argument there is an admission that the degree of non compliance is considerable as the appeal should have been filed by close of business on the 27th May 2015.

This application for condonation was only filed on the 7th of July 2015, making it about a month and a week late.

The delay is therefore inordinate.

Explanation for the delay

It is explained that the delay was caused by the non attendance to instructions given to lodge an appeal to Mr Andrew Mugandiwa a partner at Wintertons Legal Practitioners.  A copy of the written instruction directed to and signed for at Wintertons on the 20th of May 2015 is an attachment.

The instruction reads;

“Herewith attached please find Arbitration award, and related documents for this matter.  May you kindly note an appeal against award and simultaneously file an application for stay of execution of the award pending appeal.  Before filing kindly send this through to us for our perusal. …”

He is alleged not to have actioned this instruction nor given any feedback.

The applicant further avers that it only became aware of its erstwhile legal practitioners inaction upon receipt of a letter from the respondent’s legal practitioners on the 6th of June 2015 and that all telephonic follow ups with Mr Mugandiwa were futile.  It is only then that the applicant says it then instructed its current legal practitioners who then contacted Wintertons on the 19th of June 2015.  This letter is said to have been ignored too prompting the filing of this application for condonation.

The respondent contends that the explanation tendered is not reasonable.  I was reminded that as a Court I should be slow to sympathise with a litigant who fails to comply with the rules of the court due to the dilatoriness or lack of diligence on the part of the legal representative whom he chooses for himself.

(See Ndebele v Ncube 1992 (1) ZLR 288 and Salooje & Anor v Minister of Community Development 1965 (2) SA 135 A at 141 C-E)

It is pointed out that the applicant was represented by a legal officer who was aware of the dies induciae when she relayed instructions to Wintertons and requested that she be furnished with the draft notices of appeal before filing yet she knew there were only three working days remaining from the 20th of May to the 27th of May 2015.  For this I was referred to the case of Machaya v Muyambi SC-o4-05 where the Court held that

“A litigant, moreover, who knows, as the applicants did, that the prescribed period has elapsed and that an application for condonation is necessary, is not entitled to hand over the matter to his attorney and then wash his hands of it.  If, as here, the stage is reached where it must become obvious also to a layman that there is a protracted delay, he cannot sit passively by, without so much as directing any reminder or enquiry to his attorney … and expect to be exonerated of all blame; and if, as here the explanation offered to the Court is patently insufficient, he cannot be heard to claim that the insufficiency should be overlooked merely because he has left the matter entirely in the hands of his attorney.  If he relies upon the ineptitude or remissness of his own attorney, he should at least explain that none of it is to be imputed to himself.”

In casu, the applicant did not follow up with Wintertons before the 27th of May or soon thereafter.  It appears that the applicant was only jolted into action by a letter of the 6th of June from respondent’s legal practitioners.  Though the applicant was already out of time, the only written follow up with Wintertons was on the 19th of June 2015 through its new lawyers.

There is no explanation given as to why there was a delay of a month in noting the application for condonation.  In Viking Woodwork (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 at 251 it was held that what calls for an acceptable explanation, is not only the delay in noting the appeal but also the delay in seeking condonation.  This position was reaffirmed in Ganda & Ors v First Mutual Life Assurance Society SC-01-05.

Further no supporting affidavit has been filed from Mr Mugandiwa explaining his side of the story regarding the allegations against him.  The applicant has therefore merely alleged and not shown that the delay was as a result of Mr Mugandiwa’s inaction.

In the circumstances I find that the applicant has not given a sufficient and reasonable explanation for the delay.

Prospects of Success

The applicant is questioning the respondent’s entitlement to cash in lieu of notice in a case where the termination was by mutual agreement.  This calls into question the interpretation of Section 13 of the Labour Act [Chapter 28:01].

An interpretation of this section by giving it its ordinary meaning demands that I quote from the section.  Section 13 (1) (a) provides,

“Subject to this Act or any regulations made in terms of this Act, whether any person – (a) is dismissed from his employment or his employment is otherwise terminated …………………… (my emphasis)

he … shall be entitled to wages and benefits due to him up to the time of such dismissal, termination, resignation … as the case may be, including benefits with respect to any outstanding vacation and notice period …”

I agree with the respondent that the notice pay and cash in lieu of leave are legitimate entitlements flowing from section 13 (1) (a) of the Act.

The other issue raised that the claims for cash in lieu of leave, service pay and notice pay, did not fall within the terms of reference can be resolved by looking at the terms of reference before the arbitrator.  These are given as

To establish whether or not there was a mutual termination of contract.

If not, whether or not the claimant was unlawfully dismissed.

To establish whether or not claimant is owed salaries.

To determine the appropriate remedy.

I had to look at Form LR 4 which is the reference to arbitration in order to establish the terms of reference because the terms are not particularly clear from the arbitral award, especially 3 and 4 thereof.

My reading of the terms of reference suggests that depending on whether the arbitrator makes a finding as to the mutual termination or unlawful dismissal and on arrear salaries, then he had to determine an appropriate remedy.

The arbitrator’s finding is that there indeed was mutual termination of the contract of employment. The question of arising terminal benefits flows from the need to establish the appropriate remedy.

A look at the Certificate of No Settlement, form LR 2 shows that the issues referred to conciliation were “alleged unlawful dismissal and non payment of salaries and terminal benefits.”

The applicant does not have prospects of success therefore regarding claims for cash in lieu of leave, service pay and notice pay being outside the terms of reference.

There might be prospects of success regarding to the lack of a legal basis for the service pay awarded.  However I am inclined to take the approach in Kodzwa v Secretary for Health and Anor 1999 (1) ZLR 313 wherein it was held that whilst the presence of reasonable prospects of success on appeal is an important consideration, it is not necessarily decisive.  This is so in the case of flagrant breach of the rules, particularly where there is no acceptable explanation for it.  I therefore elect to refuse the indulgence of condonation despite the likely prospects of success on the aspect of service pay.

Accordingly, the application for condonation of late noting of an appeal, be and is hereby dismissed.

Ahmed & Ziyambi, applicant’s legal practitioners

Mutamangira & Associates, respondent’s legal practitioners