Tafadzwa Shopo v Diceway Enterprises (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/08/2021
HARARE, 27 MAY 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE        JUDGMENT NO. LC/H/08/2021

HARARE, 27 MAY 2020				     CASE NO. LC/H/REV/05/20B

AND 12 MARCH 2021

In the matter between:-

TAFADZWA SHOPO					Applicant

And

DICEWAY ENTERPRISES (PVT) LTD			1st Respondent

And

MR L.NHANDARA N.O.					2nd Respondent

Before Honourable R.F. Manyangadze, J

For Applicant 		Mr M. Mtlongwa (Legal Practitioner)

For 1st Respondent	Mr R.M. Macharaga (Legal Practitioner)

For 2nd Respondent	No apearance

MANYANGADZE, J:

At the conclusion of submissions made at the hearing of this matter, I gave an ex tempore judgment in which I partially granted the application for review. The following are the full reasons for the ex tempore judgment.

This is an application for review, arising from proceedings conducted by a labour officer (2nd respondent) in a dispute between the applicant and the 1st respondent. The proceedings resulted in a ruling by the 2nd respondent, in terms of which he dismissed the applicant’s claim for the payment of his terminal benefits by the 1st respondent.

The record shows that the applicant worked at the respondent company from 2012 to 2019. At the heart of the dispute between the parties i.e. applicant and 1st respondent, was the question of the applicant’s employment status. The dispute was whether or not the applicant was an employee of the 1st respondent or was a business partner. The applicant claimed he was employed as a Transport Manager, and resigned from employment due to poor working conditions which included the non payment of salaries.

The respondent, on the other hand, averred that the applicant was not an employee, but a business partner who was responsible for sourcing business contracts. He was paid fees for the contracts he managed to secure.

The 2nd respondent found in favour of the 1st respondent and dismissed the applicant’s claim for terminal benefits. This prompted the instant application, in which it is alleged the proceedings conducted by the 2nd respondent were grossly irregular and should be set aside.  The grounds for review are framed as follows:

“1.	That the Labour Officer grossly erred in dismissing the applicant’s claim as he relied on purported submissions from the 1st respondent that were not properly before him in opposition to a the applicant’s statement of claim that had been placed before him after the conciliation proceedings as the 1st respondent was in default after the conciliation proceedings as the record of the proceedings before the 2nd respondent will show.

2.	That the labour officer grossly erred in determining the matter as though it was an opposed matter when the record before him showed that the 1st respondent had not opposed the matter and had not filed an opposing papers to the applicant’s claim.”

At the hearing of the matter, the 1st respondent raised 3 points in limine. These were that;

the applicant did not cite any provision of the Labour Act on which his application is based.

the application was not on Form LC5.

the claims relating to salaries accrued prior to May 2017 are prescribed.

The 1st respondent abandoned point in limine (i). It however, persisted with points in limine (ii) and (iii).

Use of Form LC5

The Labour Court Rules, 2017, in rule 20 (1) (a) prescribe the use of Form LC5 in applications for review.

A look at the notice of application filed of record shows that it contains all the features in Form LC5. Its only omission is that it is not designated, at the top right hand corner, as Form LC5. Save for the omission of that designation, the notice of application is a replica of Form LC5.

It is the court’s view that the format used by the applicant is on all fours with what is set out in Form LC5. Rule 47 allows the Registrar of the Labour Court to accept forms that are “substantially compliant” with what is prescribed in the Schedule to the rules. As already indicated, the form used by the applicant is almost the same as the one prescribed. It does not constitute a fatal irregularity.

In light of this, this point in limine lacks merit and cannot be upheld.

Prescription

This point need not detain the court. As correctly submitted on behalf of the applicant, the question of whether or not the terminal benefits claimed, or part thereof, have prescribed, is one that cannot be properly entertained in an application for review. It goes to the substance of the dispute, and not to the manner in which the proceedings were handled.

Therefore, the argument on prescription is misplaced. It cannot qualify, even as a point in limine, in an application where the procedural issue is that the 2nd respondent improperly disregarded the applicant’s application for a default judgment.

Both points in limine are accordingly dismissed, and the application for review must be disposed of on the merits.

Although the application sets out 2 grounds for review, it raises essentially one issue. It is that the 2nd respondent, faced with an application for a default judgment filed by the applicant, went on to grant judgment in favour of the 1st respondent. That judgment was granted in the absence of submissions, written or oral, from the 1st respondent.

An examination of the record reveals that indeed, the 2nd respondent’s adjudication of the dispute was done without submissions from the 1st respondent. The 2nd respondent only had submissions from the applicant. That means the applicant’s claim was not opposed at all. What happened was that after conciliation, a certificate of no settlement was issued. The applicant then called for written submissions from both parties. In response to this call, the applicant submitted his statement of claim with all the relevant attachments to substantiate his claim. There was nothing from the respondent. This prompted the applicant to file an application for default judgment.

The next thing the applicant saw was a ruling from the 2nd respondent, dismissing his claim, and purporting to have done so on the basis of submissions from the 1st respondent. There is no explanation as to why the application for a default judgment was not dealt with.

This sequence of events is not controverted by the 1st respondent. It appears, from oral submissions made on behalf of the 1st respondent by his legal practitioner, his contention is that the applicant used submissions made by both parties at conciliation. Going by this, the 1st respondent moved from conciliation to adjudication, but based his adjudication on submissions made during conciliation. This was irregular. Post conciliation, the 2nd respondent called for written submissions from both parties. It was on the basis of these submissions, coupled with oral submissions at a hearing to which the parties expected to be called, that the ruling was expected to be based. None of this happened. What was before the 2nd respondent were submissions from one party only, the applicant. Hence the applicant’s request for a default judgment. This was completely ignored. A ruling was then handed down in favour of the 1st respondent, without the benefit of any opposing submissions.

It appears there was an irregular mixture of the conciliation and adjudication processes, rendering the proceedings before the 2nd respondent fatally defective. The record contains no minutes of either process, which would have been evidence of what exactly was done and how it informed the resultant determination.

It is the court’s considered view that the adjudication or purported adjudication done by the 2nd respondent was grossly irregular, and must be set aside.

The applicant prays that the 1st respondent be ordered to pay him the terminal benefits he has claimed, amounting to RTGS $19 320-00. The court is unable to grant this prayer. This was not a hearing on the merits of the dispute, but an application for review based on procedural irregularity. The proper course of action is to set aside the impugned proceedings, and order that the matter be remitted to a different labour officer for a hearing de novo.

In the result; it is ordered that;

The application for review be and is partially granted.

The proceedings conducted by the 2nd respondent, in the matter between TAFADZWA SHOPO (as Claimant) and DICEWAY ENTERPRISES (PRIVATE) LIMITED (as Respondent) be and are hereby set aside.

The matter be and is hereby remitted to the Ministry of Labour & Social Welfare for a hearing de novo before a different Labour Officer.

Each party bears its own costs.

Atukwa Attorneys, applicant’s legal practitioners

Macharaga Law Chambers, 1st respondent’s legal practitioners