Vundla and Another v Innscor and Another SC 14 – 22[1]

It is clear from these pleadings that the labour officer failed to conduct the conciliation in the manner stipulated in the Isoquant judgment, supra. A properly conducted conciliation does not require a statement of claim, response, reply and heads of argument. The labour officer does not make a determination in making his draft ruling. These features pertain to a hearing. Rather, he or she utilizes both the oral and written information and documents that he collects and collates from the parties to make a draft ruling. A draft ruling that emanates from improper procedural steps and substantive requirements is a nullity. It is incapable of invoking the confirmation jurisdiction of the Labour Court.

Introduction

This case was a chamber application for condonation and an extension of time within which to file an appeal. This case deals with the important elements that an applicant needs to prove for such an application to be granted. The remarks as to the merits of this matter are also important in revealing the law of conciliation that was buttressed in Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 – 2020. The far-reaching consequences of the interpretation of the Isoquant Case by the Supreme Court cannot be ignored.

The Facts

Two applicants were involved. The first applicant was a procurement manager whereas the second applicant was a general manager.

The first applicant had a mutual termination agreement with the employer. He was paid his terminal benefits after signing a mutual separation agreement and receiving such payment. He regarded this as a retrenchment.

The second applicant was retrenched with the approval of the retrenchment board. He signed the retrenchment agreement. In both cases, the two employees absolved their employer from any further claims arising from their termination.

They challenged the termination processes, and the labour officer issued a draft ruling dismissing those claims. The Labour Court confirmed the Labour Officer’s ruling. This was in November 2016.

Two appeals to the Supreme Court failed for various reasons.

It was after the Isoquant Investments (Pvt) Ltd t/a Zimoco v Darikwa CCZ 6 – 2020 that the appellants lodged a fresh appeal with the Supreme Court which appeal founded the current application.The Law

The initial finding of the court was that the Supreme Court’s interpretation in Drum City (Private) Limited v Brenda Garudzo SC 57-18 which interpretation excluded the Labour Court’s jurisdiction when a draft ruling is entered against an employee was wrong and had been jettisoned in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CCZ-20. It was after this Constitutional Court ruling that the applicants lodged the current appeal.

In an application for condonation and extension of time within which to file an appeal, the court looks at five factors in deciding if the application must be granted. These are the extent of the delay, the reasonableness of the explanation for the delay, prospects of success, the importance of the case, the respondent’s interest in the finality of his judgment, the convenience of the court and avoidance of unnecessary delay in the administration of justice.

  • The delay

It took the applicants 3 years and 8 months to partake in the appeal. This period was seen by the court to be inordinate. The court noted that part of the reason why the applicants delayed lodging the current appeal was that they had accepted the court’s view that confirmation proceedings cannot be made against a draft ruling that is made against an employee. See Drum City (Private) Limited v Brenda Garudzo SC 57-18. As already noted, this position has since been set aside by the Constitutional Court. The court could not accept this reason for the delay because the current application was not made as soon as the Isoquant case was decided. As a result, the court concluded that there was no reasonable explanation for the delay by the applicants.

  • Prospects of Success

The court’s finding was that conciliation of the dispute was not properly held. It relied on the remarks inthe Isoquant case. In that case, the constitutional court concluded that conciliation has a specific process that has to be followed by a Labour Officer before a draft ruling is produced. The process includes the introduction of the dispute, storytelling, dispute analysis and problem-solving.  If these stages are not followed, the outcome is nullity. As a result of these findings, the conclusion was that the prospects of success for the applicants were slim since the draft ruling was null and void. The court remarked:

“It is clear from these pleadings that the labour officer failed to conduct the conciliation in the manner stipulated in the Isoquant judgment, supra. A properly conducted conciliation does not require a statement of claim, response, reply and heads of argument. The labour officer does not make a determination in making his draft ruling. These features pertain to a hearing. Rather, he or she utilizes both the oral and written information and documents that he collects and collates from the parties to make a draft ruling. A draft ruling that emanates from improper procedural steps and substantive requirements is a nullity. It is incapable of invoking the confirmation jurisdiction of the Labour Court.”

  • The Merits

The court noted that if an employee accepts a retrenchment package that acts alone waives the right of the same employee to challenge the proceedings. In this respect the court ruled:

A voluntary acceptance of a terminal package is clearly knowingly made. It is also inconsistent with the continuation of an employment relationship. It constitutes conduct which reasonably leads the employer to believe that the employment relationship is over. Thus, whether the first applicant was terminated from employment by agreement or whether like the second applicant he was retrenched, their deliberate acceptance of their respective terminal packages was inconsistent with the continuation of the employment contract.

Conclusion

The court concluded that the application failed to meet all three major requirements for condonation and extension of time within which to appeal.

Own Comment

The court’s findings were clear-cut and consistent with the law that applies when one seeks to request the court to extend the time within which to file an appeal.


[1]           Vundla and Another v Innscor Africa Bread Company Zimbabwe (Private) Limited and Another SC 14 – 2022

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