Business Equipment Corporation v Farai Mtetwa

The respondent was initially dismissed from the appellant's employ for misconduct (the first dismissal). The Negotiating Committee ordered reinstatement without loss of pay or benefits, which was upheld by the Labour Court. When the respondent presented himself for duty, he was informed the appellant would appeal to the Supreme Court. The respondent then filed his own appeal to the Supreme Court seeking damages instead of reinstatement. Pending the appeal, the respondent did not report for work. Seven months later, the appellant demanded he report for duty or face dismissal. When the respondent failed to report, disciplinary proceedings were instituted culminating in a second dismissal on 14 May 2002. The respondent appealed the second dismissal to the Labour Court. The appellant failed to attend the hearing, and the Labour Court entered a default judgment finding the respondent had reasonable excuse for not reporting to work during the pendency of his appeal. The appellant sought rescission of that judgment, which was dismissed, leading to this appeal.

• Whether the Labour Court erred in finding the appellant was in wilful default when it failed to attend the hearing
• Whether proper service of the notice of hearing had been effected on the appellant's legal practitioners
• Whether the respondent had reasonable excuse for failing to report for work pending his appeal to the Supreme Court
• Whether the noting of an appeal suspends enforcement of the judgment appealed against under common law
• Whether the appellant had a bona fide defence on the merits warranting rescission of the default judgment

The appeal was dismissed with costs. The respondent was entitled to reinstatement to his former employment with the appellant without loss of salary or benefits, as per the earlier Supreme Court judgment in case SC 25/04.

Under common law, where the Legislature is silent on the effect of an appeal, the noting of an appeal suspends the enforcement of the decision appealed against. An employee who has properly noted an appeal to the Supreme Court concerning an order of reinstatement has reasonable excuse for not reporting for work pending determination of that appeal, particularly where the employer has not obtained leave to execute the judgment pending appeal and has itself communicated its intention to appeal. For rescission of a default judgment to succeed, the applicant must demonstrate both absence of wilful default and a bona fide defence on the merits with prospects of success; failure to establish the latter is fatal to the application even if wilful default is not proven.

The Court observed that the appellant took almost seven months to inform the respondent he should attend duty, and during that period did not inform him of any change of heart regarding its proposed appeal to the Supreme Court. The Court also noted that aside from his own appeal, the respondent could not reasonably have been expected to know he would be welcomed back to work given the letter he received indicating the appellant's intention to appeal. The Court made reference to the case of Phiri & Ors v Industrial Steel and Pipe (Pvt) Ltd 1996 (1) ZLR 45 as authority for the proposition that noting an appeal suspends the decision appealed against under common law.

This case is significant in Zimbabwean labour law for clarifying: (1) the common law principle that noting an appeal suspends enforcement of the judgment appealed against in the absence of legislative provision to the contrary; (2) that an employee may have reasonable excuse for failing to report for work when a properly noted appeal concerning their employment status is pending; (3) the requirements for establishing wilful default in rescission applications; and (4) that even where procedural errors occur (such as wrongly finding wilful default), an appeal may still fail if the applicant cannot demonstrate a bona fide defence on the merits.