In chambers in terms of section 92F(3) of the Labour Act.
This is an application for leave to appeal to the Supreme
Court against the decision of the Labour Court. On 24 July 2017, I dismissed
this application. The applicant wrote to the Registrar requesting reasons for
my order.
These are they.
The factual background of the matter is as follows:
The applicant was employed by the respondent as an Industrial
Nurse from May 1980. When she started working, her salary was tagged at
grade C1, and, thereafter, she rose through the ranks to grade C3. In July
2013, she retired, having attained the retirement age of 65. Thereafter, the
respondent offered her a contract to work as an occupational Health Officer
which she accepted.
Before her retirement, the applicant was being paid a
monthly salary of $572=. However, during the period of employment as an
Occupational Health Officer, she accidentally came across a March 2011 basic
salaries schedule. The schedule showed that she was the least paid employee in
the grade C3 and that she was paid even less than some employees in lower
grades C2 and CI. Thinking it was an error, the applicant approached the Human
Resources Executive with a view to having her salary reviewed upwards. On being
advised that it was not an error she proceeded file a complaint with a labour
officer. The dispute was subsequently brought before an arbitrator.
The arbitrator found that the applicant had been underpaid
from July 2011 to September 2013 and that she was supposed to be paid $13,986=.
The respondent appealed against the award to the Labour Court and the court
upheld the appeal on the basis that, at law, an employer can pay different
salaries to employees doing the same work based on the terms of their
agreements. This is as long as the terms do not violate the Collective
Bargaining Agreement. The court a quo thus concluded that the findings of the
arbitrator were not supported by the law - albeit morally sound.
Aggrieved, the applicant filed an application for leave to
appeal to this court, before the Labour Court. The application was set down for
hearing on 16 February 2016. Neither the applicant nor her legal representative
attended the hearing, and, consequently, the application was dismissed in
default. The applicant then filed an application for rescission of the default
order dismissing her application for leave to appeal. In motivating her
application, she argued that the default was not wilful and that the judgment
ought to be rescinded.
On 19 August 2016, the court dismissed the application for
rescission on the following grounds, that:
(i) The applicant was to blame for the actions of her
erstwhile legal practitioners;
(ii) Her legal
practitioners had not given an explanation for their inaction;
(iii) There were
inconsistences in her submissions; and
(iv) She had no prospects of success on appeal.
The applicant then filed an application for leave to appeal
against the order dismissing her application for rescission of the default
order. On 22 March 2017, that application was dismissed, hence the present
application for leave to appeal against the order that dismissed her
application for rescission of the default order.
It is trite that an applicant seeking leave to appeal must
establish that he has prospects of success on appeal. In the words of GARWE JA
in Chikurunhe and Ors v Zimbabwe Financial Holdings SC10-08;
“The party seeking leave must show, inter alia, that he has
prospects of success on appeal. In other words, leave is not granted simply
because a party has sought such leave.”
In this case, the question of prospects of success hinged
on whether or not the applicant satisfied the requirements for rescission.
In an application for rescission of a default judgment, the
court must be satisfied that there is good and sufficient cause to rescind the
order. In Makoni v CBZ Bank Limited HH357-16, CHITAKUNYE J quoted the case of
Stockil v Griffiths 1992 (1) ZLR 172 (S)…, wherein GUBBAY CJ aptly noted that:-
“The factors which a court will take into account in
determining whether an applicant for rescission has discharged the onus of
proving “good and sufficient cause”, as required to be shown by Rule 63 of the
High Court of Zimbabwe Rules 1971 are well established. They have been
discussed and applied in many decided cases in this country. See for instance,
Barclays Bank of Zimbabwe Ltd v CC International (Pvt) Ltd SC16-86 (not
reported); Roland and Another v McDonnell 1986 (2) ZLR 216 (S) at 226E-H;
Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210 (S) at 211C-F. They
are:
(i) The reasonableness of the applicant's explanation for
the default ;
(ii) The bona fides of the application to rescind the
judgement; and
(iii) The bona fides of the defence on the merits of the
case which carries some prospect of success.
These factors must be considered not only individually but
in conjunction with one another and with the application as a whole.”
From this authority, it is clear that the test of a good
and sufficient cause involves the establishment of the following factors:
(a) Explanation for the default must be reasonable;
(b) The bona fides of the application to rescind the
judgment;
(c) The bona fides of the defence on the merits of the case;
and
(d) Prospects of success.
I now proceed to deal with these factors separately.
The explanation for
default and bona fides of the application to rescind
In her application for rescission of the default order, in
the court a quo, on one hand, the applicant submitted that her default was due
to the inadvertence of her erstwhile legal practitioners who did not advise her
that the matter had been set down nor attend the hearing of the matter. She
expanded on this submission in her founding affidavit and stated that her legal
practitioners had been served with a notice of set down but had not notified
her of this fact.
On the other hand, in her oral submissions at the hearing,
the applicant argued that her legal practitioners were not served with the
notice of set down, thus they were unaware of the hearing date and so was she.
These submissions were inconsistent with the evidence on record, in particular,
the return of service which was placed before the court and which showed that
the applicant's legal practitioners had been served with the notice of set
down.
The court a quo found that other than the applicant's
inconsistent explanations, her legal practitioners had not filed a supporting
affidavit admitting to the blame and/or explaining why they failed to act on
behalf of their client despite being served with the notice of set down.
It is trite that where the legal practitioner is the one
who is at fault, he must file an affidavit admitting his errors. The principle
was laid out in the case of Diocese of Harare v The Church of the Province for
Central Africa SC09-10, where this Court held that:
“Although in argument Mr Zhou suggested that the failure to
comply with the relevant Rules of Court was wholly attributable to the
respondent's legal practitioners, there was no admission of negligence by the
legal practitioner…,.
It would have been after the responsible legal practitioner
had filed an affidavit admitting fault and explaining in some detail what
happened, that the Judge would be in a position to decide whether the
respondent should not be visited with the sins of its legal practitioners.
Where no factual basis for making such a distinction of culpability has been
provided, the Judge would have no right to draw it. It must follow that without
an affidavit from the person responsible for the “oversight” admitting fault
and explaining the circumstances under which he or she overlooked the Rules,
one is at a loss for the reason why it was found necessary to state in the
opposing affidavit that an 'oversight' on the part of the respondent was the
cause of non-compliance. The procedure adopted by the respondent is another
example of lack of care to ensure that Rules of Court were complied with.”
In light of the above authority, with regards the
explanation for the delay and the applicant's bona fides, my view is that the
court a quo was correct in concluding that the applicant's explanation for the
default was not reasonable and that her application for rescission lacked bona
fides as she was clearly trying to mislead the court.
Prospects of success
The applicant argued that despite receiving a salary that
was in terms of the Collective Bargaining Agreement (CBA), such salary was less
than that received by others in her grade and by some in lower grades.
Accordingly, she was entitled to the difference as from July 2011.
It should be noted that Collective Bargaining Agreements
stipulate minimum wages for any particular grade. An employer is only guilty of
an unfair labour practice if he fails to pay the minimum salaries for a
particular grade provided therein. It follows, therefore, that employees may
receive different salaries despite being in the same grade. The actual amount
of the salary depends on the employee's negotiations with the employer in
forming the employment contract.
Moreover, it is trite that an employment contract is one
that is between the employer and the employee. The principles of the law of
contract, such as freedom of contract, therefore, apply. In Barkhuizen v Napier
2007 (5) SA 323 (CC)…, the Constitutional Court of South Africa, explaining the
freedom of contract principle, stated thus:
“Self-autonomy, or the ability to regulate one's own
affairs, even to one's own detriment, is the very essence of freedom and a
vital part of dignity. The extent to which the contract was freely and
voluntarily concluded is clearly a vital factor as it will determine the weight
that should be afforded to the values of freedom and dignity.”
Further, in Malunga & Ors v PTC SC117-97, this court
dealt with a matter almost similar to the present one.
In that case, the appellants were receiving different
salaries despite the fact that they were doing the same work. They argued that payment of different wages for
the same type of work had no objective basis and was irrational.
The learned judge of appeal found that there was no
legitimate expectation on the part of an employee to be paid more than what he
is supposed to be paid simply because other employees may be receiving greater,
seemingly unjustified, benefits.
It was on the basis of the foregoing, and authorities
cited, that I found no fault in the decision of the court a quo to the effect
that the applicant had no prospects of success on appeal in this matter, had
tendered no satisfactory explanation for the default in question, and had also
demonstrated a lack of bona fides in the defence that she proffered. In short,
she had not proved a case for the relief sought.
Accordingly, I dismissed the application with
costs.
