Ian Abedningo v Jin An Corporation & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/272/2020
HARARE, 4 NOVEMBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/272/2020

HARARE, 4 NOVEMBER 2020		                 CASE NO. LC/H/APP/873/18

AND 20 NOVEMBER 2020

In the matter between:-

IAN ABEDNINGO					Applicant

And

JIN AN CORPORATION				1st Respondent

And

PRISCILLAH MGAZI				2nd Respondent

And

THE SHERIFF FOR ZIMBABWE		3rd Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr A.T. Nhidza (Unionist)

For 1st Respondent	Mr E.N. Dube (Legal Practitioner)

CHIDZIVA, J:

This is an application for the rescission of the default order under case number LC/H/ORD/611/2018 that was handed down on 20th and 27th June 2018.

The brief facts of the matter are that the Applicant was employed as a Finance Manager on the 1st of July 2017 on a fixed term contract of (1) one year (6) six months.  The first two (2) months were the probation period which the employer could terminate on two weeks notice. The contract was terminated on notice just 5 weeks into the contract. Aggrieved by the decision applicant took up the matter to the 2nd Respondent. The Labour Officer ruled in applicant’s favour and ordered the 1st Respondent to pay applicant for the remaining part of the probationary period.

It is the applicant’s argument in this matter that the 5 weeks was not enough for him to prove his worthy. The contract indicated that he was assessable in two months. The applicant further stated that the appropriate remedy would have been reinstatement without loss of salary and benefits.

The first Respondent in response argued that the applicant was not properly before this Court because he had not filed any founding affidavit. Furthermore the Trade Unionist Mr Nhidza and the Labour Officer in their affidavits did not state that they have the authority to depose to these affidavits and thus there was no application for rescission before this Court.

To start with this Court is going to decide whether or not there is a proper application for rescission in the absence of applicant’s founding affidavit.

It is not disputed that Mr Nhidza was applicant’s representative of record. Mr Nhidza stated what he knew about the history of the matter.  He said that he only became aware of the default when he was making a follow up of the set down request to the Registrar dated 20 June 2018 (Annexure 2). The receipt is also attached as annexure 3.

Pamela Musonza the receptionist also stated that she became aware of the set down on 12 October 2018 when it was brought to her attention by Mr Nhidza.

It is this Court’s view that Mr Nhidza had the lawful right to depose to the affidavits because he had the full history of the matter. He was representing the applicant and he knew what had transpired.

In the circumstances therefore this matter is properly before this court.

In cases of this nature the facts to be considered are,

Reasons for the default.

Prospects of Success.

Explanation for the default

The reasons for the default have been stated above. The applicant was interested in this matter hence the request for the set down date and the subsequent follows up. The proof of service of the notice of set down (for the) has not been produced. In the circumstances therefore I find that the explanation is reasonable.

Prospects of Success

It is applicant’s argument that if he is given the chance to argue his case he has prospects of success.

It is his argument that he should have been given more time to prove his worth.

Applicant was employed on a contract of 11/2 years. However the first (2) two months were probationary and the employer could terminate it on two weeks’ notice. It was also stated that in 3:3 that,

“If the employee’s services are terminated by employer within the probation period this shall be done with due cognisance of the principles of procedural fairness.”

It is clear from this clause that termination could be done even before the expiry of the probation period. In the case of St Giles Medical Rehabilitation Centre v Lambert Patsanza SC 5918 it was held by Guvava JA that

“The main reason for having a period of probation is now generally accepted.  A probationary period is designed to function as a time when an employer can evaluate potential employee before opting to accept him or her as a full time employee. During this period the employee is assessed and evaluated to determine his suitability for permanent employment.  Professor Lovemore Madhuku in his book “Labour Law in Zimbabwe at page 44 states as follows with regards to the purpose of probation.

‘A probationary employee is one who is in initial period of his or her employment where his skill and abilities are being assessed. The probationary employment contract is separate from the second employment contract, which is conditional on successfully completing the probation.’”

In their letter of termination dated 9 August 2017 the first Respondent stated that

“According to our assessment you have not demonstrated the skill and experience which you hold yourself to have in terms of your curriculum vitae and the interview.”

The applicant was then given the (2) two weeks notice stated in the contract of employment. In my view it is the employer who had the power to decide the standard they required at their workplace. Within those (5) five weeks the employer had assessed and found that applicant did not have the requisite skills.

In the case of St Giles Medical Rehabilitation Centre v Lambert Patsanza SC 59/18Guvava JA stated that,

“There are two ways in which an unsuccessful probationary employee can be dismissed. The First is to allow the probation period to expire naturally wherein the employee is released at the end of that period. The Second is to release the probationary employee before the end of the probation period. Where the probationary period is cut short then the issue of notice arises and he must be given notice in terms of the contract (See Time Bank of Zimbabwe vs Nkosana Moyo HH 26/02).”

The first respondent gave the applicant the requisite notice of (2) weeks.

In the circumstance therefore I find that applicant has no prospects of success on appeal.

In the absence of prospects of success I find this application meritless.

I therefore order that

The application be and is hereby dismissed.

Applicant shall bear costs.

Gundu & Dube Legal Practitioners, 1st respondent’s legal practitioners