Unice Mudewa v Marlborough High School SDC

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/292/24
HARARE, 25 JUNE, 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 25 JUNE, 2024

05 JULY 2024

JUDGMENT NO LC/H/292/24 CASE NO LC/H/454/24

UNICE MUDEWA	APPLICANT

MARLBOROUGH HIGH	RESPONDENT SCHOOL SDC

Before the Honourable G. Musariri, Judge:

For Applicant	- Mr T. Muzana, Attorney

For Respondent	- Mr Chako, Attorney

MUSARIRI, J:

On 9th April 2024 this Court issued a default judgment in terms of which it set aside the determination by Designated Agent A. Chimedza. The determination had ruled that respondent unlawfully terminated applicant’s employment. On the 8th May 2024 applicant applied for the rescission of the default judgment. The application was made in terms of Section 92C of the Labour Act Chapter 28:01 as read with Rule 40 of the Labour Court Rules, 2017. Respondent opposed the application.

Default

The aforesaid default judgment was issued after respondent filed a defective Notice of Response wherein the deponent did not show his authority to act. The affidavit was then struck off the record. Effectively respondent was barred for failure to file a valid Response.

Explanation

The quintessence of applicant’s explanation for her default is captured in her founding affidavit thus;

‘’15. The Application had filed a defective affidavit through her representative when she was away to her rural where she attending a funeral of a relative because of the limited knowledge and legal know how of the rules of the Court. The legal representative of the Applicant did not advise her of the legal implication of

filing a defective affidavit.

16.	The Applicant indeed authorized her legal representative to depose on the affidavit as she was not familiar with the Labour Court Rules. The Applicant

was of the view that Legal Representative has the full knowledge and circumstances of the matter since he was the one who has been handling the matter from plant level as such may depose to the affidavit.’’

Respondent countered through its heads of argument thus,

‘’12. In the instant matter, there is no evidence on record to show that the Applicant’s Legal Representative, a Trade Unionist, was less competent than would be expected of him. The Trade Unionist did not even explain in his Affidavit why he was ignorant of the law. Under such circumstances, the Applicant cannot escape the consequences of her representative’s sins.’’

Prospects of success

Appellant abided by the reasoning of the Designated Agent in the determination made in her favor. The ratio for the determination reads as follows,

‘’Findings and Analysis by the Designated Agent. The respondent did not comprehensively show that termination was done in terms of the provisions at law. The respondent’s position that Section 12(4a) d 12C as read with Section 12(4b) of the Labour Act was the manner in which this contract was terminated are not substantiated by anything. The respondent merely states this but there is nothing to show for it.

The respondent only filed proof of payment of terminal benefits and proof of the complainant having found alternative employment somewhere. It is strange that the respondent would adduce evidence of the above without producing proof of the termination process itself.

In light of the respondent failing to convince this tribunal that the termination was done accordingly. The complaints claim that the respondent did not use any of the lawfully permissible ways to terminate the employment contract stands.’’

The critical proofs in this matter start with the letter dated 28 April 2023 written by respondent to applicant which reads

‘’I regret to give you notice of termination of employment as a result of abolition of post  of tuck-shop attendant effective 1 May 2023.

This notice has been necessitated by the fact that the tuck-shop has been handed over to the teachers who are the new operators. As you are aware, the handover and takeover of the tuck-shop in which you participated was done on 22 March 2023.

As a result of this development the existing under Marlborough high school SDC therefore abolished. Your terminal benefits will be calculated in terms of Section 12C of the Labour Act.’’

Respondent argued that what happened was a transfer of undertaking. It relied on Section 16 of the Labour Act which provides that

1. ‘’Subject to this section, whenever any undertaking in which any persons are employed is alienated or transferred in any way whatsoever, the employment of such person

shall,		unless otherwise lawfully terminated, be deemed to be deemed to be transferred to	the transferee of the undertaking on terms and conditions which are not less favorable

than those which applied immediately before the transfer, and the continuity of such employees shall be deemed not to have been interrupted.

Respondent stated that applicant was transferred per Section 16 rather than terminated.

Analysis

The default in casu was the failure to file a valid Response. It is clear that the failure was caused by ignorance of intricacies of court pleadings. Ordinarily such ignorance is no excuse particularly where a party is represented. But the representation in casu was by a unionist rather than an attorney at law. A unionist cannot be held to the same standard as an attorney. In any event the error related to a procedural oversight rather than matters of substantive law. On that basis the explanation for default is considered as reasonable in the circumstances.

As regards the merits it is clear that respondent is recanting from the position it took in the letter dated 28 April 2023. The letter does not speak to a transfer of the employee but her termination. This is further confirmed by reference in the letter to payment of her terminal benefits. Therefore, at this stage it is safe to say that applicant has good prospects of success on the merits.

CONCLUSION

After considering the default, explanation therefor and prospects of success, it is concluded that applicant has made out a good case for rescission. It is therefore in the interests of justice that the application be granted.

Wherefore it is ordered that;

The application for rescission be and is hereby granted;

The judgment issued by this Court on 9th April 2024 and referenced LCH 157/24 is set aside;

The bar against applicant is uplifted so that she may file her response under LCH 1044/23 within ten (10) days hereof; and

Each party shall bear its own costs.

J-U-D-G-E