Lake Harvest Aquaculture v Trust Takawira

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/66/2016
HARARE, 23 JULY 2015
CASE NO.
JUDGMENT NO. LC/H/66/16
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/66/2016

HARARE, 23 JULY 2015				CASE NO. LC/H/APP/395/15

AND 19 FEBRUARY 2016

In the matter between:-

LAKE HARVEST AQUACULTURE			Applicant

And

TRUST TAKAWIRA					Respondent

Before Honourable L. Kudya, Judge

For Applicant		B.K. Mataruka (Legal Practitioner)

For Respondent	G. Maoneka (Para-Legal Officer)

KUDYA, J:

This is an application for condonation of the late filing of an appeal by the applicant employer against an arbitral award which was made in the respondent employee’s favour.

The background to the matter is that the respondent attended at arbitration on a matter where he claimed non payment of overtime worked.  Conciliation efforts had failed to resolve the matter thus leading to the reference to arbitration.  It was concluded that indeed respondent had to be paid overtime calculated using the documents which were tendered to the arbitrator on the quantum.

It is noteworthy however that from arbitration all the way to now the Labour Court, applicant argued that respondent was not entitled to overtime since it had been paying him a salary and allowances above those stipulated for his grade by the Industry code.  To that extent the applicant felt that payment of overtime would unjustly enrich respondent at its expense.

Aggrieved by the arbitral award the applicant sought to appeal to the Labour Court but by the time it did so it was already outside the permissible time lines to file such an appeal.  This resulted in it making the instant application where it seeks the court to condone its flouting of the time limits for noting the appeal.  Respondent in turn opposed the application arguing that it was not merited as the delay was not properly explained, was inconsistent  with that of a party keen on appealing and that the appeal is not merited hence no good case for condonation has been made out.

It is also worth noting that whilst the condonation awaited a set down date the applicant went ahead and again flouted court rules by filing its heads of argument on the condonation matter outside the time limits set out in the Labour court rules.  This fact only came to light after the hearing of instant application had commenced and counsel for applicant had submitted orally and tendered heads of argument for his client’s case.  It was only upon asking the representative for the respondent to respond to the submissions made that he advised the court that his client had on 3 July 2015 filed for the dismissal of the condonation application in terms of rule 19 (3) as the applicant was again at that time in breach of the timelines for the submission of the heads of argument.

The court was advised and noted from the record that the 3 July 2015 application had not yet been heard.  In view of the fact that the objection or point was raised after counsel for applicant had already submitted on the condonation application the court took it that the interests of justice would best be served by adjourning the matter to allow the parties to come up with a common position on how the matter could proceed as it was by then apparent that the condonation application could not be concluded without the rule 19 (3) matter being dealt with first.

On resumption of the proceedings respondent agreed to abandon its submissions on the point in limine and prayed that court conclude the condonation matter.  He also indicated that to that extent he was technically abandoning/withdrawing the 19 (3) matter so that the condonation matter could be concluded.  It is on that basis that the parties then had to conclude their condonation submissions.

That long history being on it may what is worth noting is that, despite the abandonment of the 19 (3) matter it is apparent on record that indeed the heads of argument by applicant were once again out of time.  The court did not take the trouble to delve further into why that was so again given the first default giving rise to the instant application.  This is so because what mattered was that, for a fact the applicant was again it breach of the rules of court.

Turning to the submissions on condonation and the heads filed thereon this court does not wish to restate the law vis what has to be satisfied in such an application. Cases cited in applicant’s heads suffice and deserve no restatement as they are apparent in the heads filed of record.  Each of the tenets will be addressed in light of submissions made by both parties.

Extent of delay

Applicant says it delayed by 1 day to note appeal because date of receipt of award was 2 March 2014 and not 27 February 2014.  Respondent says it was 4 days because on file is document showing that applicant got award on 27 February 2014. What is important to note is that both arguments advanced about the dates have backing from the record but the difference between the 1 day and 4 days in the court’s view is negligible. What is pertinent is that, indeed by 1 or 4 days the applicant was out of time.

On the same note it is also apparent that by any stretch of imagination such a delay can by no means be styled lengthy.  In the result the argument made by applicant that respondent concedes that delay was not inordinate does not advance the case much further as it is apparent on the face of the time lines.  What is critical is that granted, the brief delay does it together with prospects qualify to persuade court to grant the indulgence sought.

Explanation of the delay

As in extent of delay very little turns on this. Whether it is accepted that it was a mis-diarisation as given by the applicant’s counsel or dilatoriness on his part despite reminders from his client the question remains whether the cumulative effect of the tenet would persuade rant or refusal of the relief sought.

MERITS

This in the record’s view is the critical component of the application.  Granted that the applicant need not show/demonstrate complete prospects of success but a reasonably arguable case on appeal.  It needs however be noted that a reading of the arbitral award speaks to the fact that indeed the respondents were not paid any overtime even though they worked as such.

It was also not contested that the appellant did place the respondents in grades higher than those which they were entitled to.  It is also clear that there was no categoric waiver of overtime entitlement by the respondents which appellant could use to disentitle them.

An assessment of the just described scenario shows clearly that the appeal intended to be mounted by the appellant is quite porous.  To that extent even though the delay was nominal the cumulative effect of the delay and the porous appeal leads to only one inescapable conclusion that the condonation application is not merited.  It should consequently fail.

IT IS ORDERED THAT

The application for condonation of late noting of appeal being without merit it be and is hereby dismissed.

Each party bears own costs.

Gill Godlonton & Gerrans, applicant’s legal practitioners