Ribitiger v Obadia Giya

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/233/13
HELD AT HARARE ON 20 MARCH 2013
CASE NO.
JUDGMENT LC/H/233/13
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT LC/H/233/13

HELD AT HARARE ON 20 MARCH 2013			CASE NO. LC/H/705/11

In the matter between:

RIBITIGER					-		Applicant

And

OBADIA GIYA					-		Respondent

Before the Honourable President, E.F. Ndewere

(IN CHAMBERS)

NDEWERE E.F.

The Respondent was the Applicant’s credit controller from 18 September, 2009.  The Applicant paid the Respondent agreed wages from September to November, 2009.  From December, 2009, the Applicant stopped paying the wages.  No wages were paid for the whole of 2010.  Instead Applicant was giving the Respondent a transport allowance.  On 5 February, 2011, the Respondent approached the Applicant, asking for the outstanding wages.  The Applicant refused to pay him.  The Respondent referred the issue to a labour officer who referred the issue to arbitration.

At Arbitration, the Applicant disowned the Respondent as its employee and said he was an independent contractor, entitled to commission only.  The Arbitrator’s findings were in favour of the Respondent.  She was convinced that based on the evidence before her, the Respondent was the Applicant’s employee and her award was that he should be reinstated without loss of benefits, from December, 2009, when Applicant had stopped paying him.

The Applicant applied for stay of Execution of the award, pending appeal.  Respondent opposed the application.  The application was set down for argument on 22 June, 2012.  On the hearing date, the Applicant and its legal practitioners did not appear; consequently, a default order dismissing the application for stay of execution was granted.

The Applicant is now applying to have the default order rescinded.  The Respondent is opposing the application for rescission.  Both parties have agreed that I can dispose of the application on the papers.

The first inquiry in an application for rescission is whether the default was willful or not.  The Respondent has argued that the default was willful.  In an affidavit, the Respondent states that he actually saw the Applicant’s legal practitioner at the Labour Court on 22 June, 2012 and he, the Respondent, talked to him.

It is highly unlikely that the Respondent mistook someone else for the Applicant’s legal practitioner.  The legal practitioner himself does not suggest a case of mistaken identity, but gives a bare denial and suggests malice.  The court therefore accepts the Respondent’s submission as the correct one.  In addition, the Respondent’s legal practitioner does not give reasons why he did not ask another practitioner from his law firm to appear at Labour Court on his behalf.  There is also no explanation as to why the Applicant was not in court because if an official from the Applicant had come, a default order would not have been given.  The matter could have proceeded or it could have been postponed.  If a party chooses to trust its Legal Practitioner to the extent of not making an appearance that party must suffer the consequences in cases like the present where the Legal Practitioner fails to turn up and a default order is issued.  In such instances, the sins of the Legal Practitioner should be visited on its client.

In addition, the Applicant has little prospects of success on appeal.  The Arbitrator carefully considered the facts of the matter.  The Respondent was able to prove that he worked for the Applicant from September, 2009 and was paid US$250.00 as a wage and a transport allowance of $25.00.  He received this payment from September, 2009 to November, 2009.  From December onwards, the Applicant did not pay the $250 wage, but paid $25 transport allowance only and Respondent continued to report for duty.  To corroborate this, on 20 August, 2010, the Applicant wrote a testimonial statement to Edgars, confirming the Respondent’s employment as a Credit Controller and asking Edgars to consider him favorably in his application to open an account with them.  So the Arbitrator had a situation where the Respondent had shown that he was an employee who was later summarily dismissed without following the legal formalities.  It will be difficult for the Applicant to have the Arbitrator’s award set aside on appeal given the provisions of the Labour Act which puts the onus of providing contractual details of an employee on the employer and states that if there are no documents to the contrary, in cases like the present one, the employee will be deemed a permanent employee.

In view of the above, the application for rescission of the default judgment dismissing the application for stay of execution by the Applicant, RIBITIGER (Private) Limited is hereby dismissed, with costs.

TAVENHAVE AND MACHINGURA LEGAL PRACTITIONERS -APPELLANT’S LEGAL PRACTITIONERS