Andrew Dzuda v Willdale Bricks

### Preamble
JUDGEMENT NO. LC/H/742/13
IN THE LABOUR COURT OF ZIMBABWE
HELD IN HARARE, 17 SEPTEMBER, 2013
CASE NO. LC/H/100/11
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IN THE LABOUR COURT OF ZIMBABWE

HELD IN HARARE, 17 SEPTEMBER, 2013 &             CASE NO. LC/H/100/11

31ST JANUARY, 2014

In the Matter Between

ANDREW DZUDA	 				Applicant

And

WILLDALE BRICKS					Respondent

Before The Honourable E. Makamure:	Judge

For Applicant	 :	Mr Katsuro  (Legal Practitioner)

For Respondent:  	Mr Mutasa (Legal Practitioner)

MAKAMURE J,

This is an application for quantification of damages. This is pursuant to a court order that:

“The respondent be and is hereby ordered to reinstate the appellant to his post with no loss of salary and benefits with effect from date of dismissal. In the event that reinstatement is no longer possible, the respondent be and is hereby ordered to award the appellant appropriate damages as agreed between the parties. Should parties fail to agree, either party may approach this court for quantification.”

Following the above order the respondent neither reinstated the appellant nor initiated discussions on the appropriate damages to be awarded to the applicant. This prompted the application which is now under consideration.

When the applicant was dismissed he was earning a monthly salary of one thousand three hundred and fifty US dollars (USD1 350.00).  So this figure is in my view common knowledge between the parties. His monthly entitlements were therefore as follows;

Salary 						1 350.00

Diesel (allowance)				  483.00

Cellphone allowance 				    60.00

Medical aid for three people 			  155.00

School fees					  240.00

Cash in lieu of leave				  153.40

Total						2 441.40

He claims a total of 36 months gross salary as damages. This amounts to $88 214.00. He claims backpay in the sum of seventy thousand six hundred and sixty seven dollars and twenty six cents (USD 70 667.26). I do not think one can do anything about the back pay. This is what he was entitled to. He should get it.  This was aptly stated by the Supreme Court in this case of Kuda Madyara vs. Globe & Phoenix Industries t/a Ran Mine 2002 (2)(ZLR 269 (S) (Madyara):

“As far as backpay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect. In my view, both of them are entitled to backpay and benefits. The only difference between then is that one gets his job back whilst the other is paid damages for the premature termination of his employment.”

His total claim is (USD 158 88.81) one hundred and fifty eight thousand, eight hundred and eighty one dollars.

He has submitted correspondence from the schools where his children were. The respondent has submitted that the applicant has not proved overtime allowance, fuel allowance, medical aid contributions and company car for personal use. Unfortunately for the applicant he has not attached the contract which bound him with the respondent. This would have guided the court on what his actual benefits were.

Further in a different but related matter this court dismissed his claim for a use of a motor vehicle. He has now submitted that during the earlier proceedings he had not submitted actual figures which he now has. I find myself not able to accede to that particular claim. Those particular figures ought to have been placed before the court which sat to deal with that issue in particular.

It is trite that in an application for quantification of damages the employer has the onus to prove that the employee ought to have secured or did secure alternative employment after he had been dismissed. See (Madyara) (above) where the Supreme Court stated as follows;

“…… the burden of showing that Appellant (employee) earned or ought to have earned some money during the relevant period rested on the Respondent…………”

In the present matter the respondent has not discharged that onus. It is now an established principle that where an employee has been reinstated with no loss of salary or benefits, he is entitled to his back pay and benefits (Madyara)(above). What is important is that such backpay and benefits be proved. Had the employee been reinstated, he would get his salary and the benefits. The fact that the employer chose not to reinstate him, does not disentitle the employee from getting what is due to him or her. Even though the applicant has failed to provide the contract document, an award by an arbitrator dated 15 October 2010 shows that the applicant was entitled to fuel, company vehicle, cellphone allowance and school fees. To that extend therefore the bulk of the applicants claim has been proved. So save for claim for the motor vehicle he succeeds on back pay. On the damages, the applicant claims 36 months’ salary. He has not secured employment since dismissal. He has proved that he made efforts to secure alternative employment without success. The respondent asserts that the applicant could have secured alternative employment within nine (9) months of losing his job. There is no proof that is the position. Applicant on the other hand has made a case for a claim of damages for 36 months. However, considering what authorities say on the subject of quantification it is the court’s view that damages for 24 months will meet the justice of the case.

Accordingly applicant is granted an award for damages as follows:

Back pay 					70 667, 26

Damages 2441.40 x 24			58 543.60

Total					         129 260.86

Accordingly the respondent be and is hereby ordered to pay the applicant the total of one hundred and twenty nine thousand two hundred and sixty dollars and eighty six cents ($129 260.86) as damages in lieu of reinstatement.

Zimbabwe Labour Centre, for the applicant

Dube, Manikai & Hwacha, for the respondent