Auther Rusere v Retan Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/413/16
HELD AT HARARE 7 JUNE 2016
CASE NO
JUDGMENT NO LC/H/413/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/413/16

HELD AT HARARE 7 JUNE 2016				CASE NO LC/H/APP/260/16

& 8 JULY 2016

In the matter between:

AUTHER RUSERE					Applicant

And

RETAN INVESTMENTS					Respondent

Before The Honourable E Mucahwa, Judge

For Applicant			Ms B Wozhele (Legal Practitioner)

For Respondent		In default

MUCHAWA, J:

This is an application for quantification of damages following an order of this court which ordered as follows,

“By consent, the disciplinary proceedings held by the respondent on 4 July 2014 be and are hereby set aside.

respondent is to reinstate the applicant with effect from dated of unlawful dismissal without loss of salary and benefits, and may, if it so wishes reinstitute fresh disciplinary proceedings in a procedurally correct manner.

in the event that reinstatement is not an option, the applicant should be paid damages in lieu of reinstatement, the quantum of which should be agreed by the parties or assessed by the court.

The respondent is of the view that reinstatement is no longer an option hence this

application for quantification.

Both parties filed heads of argument though the respondent did not attend the hearing.  I proceeded to hear the applicant to enable the court to properly quantify the claim as to quantify without leading evidence is to err in law.

The claim of the applicant as set out in the notice of application is as follows

back pay  for 19 months from 27 June 2014 the date of unlawful dismissal to 10 February 2016 being the date of reinstatement at the agreed salary of $313.00 per month = $5947.00

notice pay for 3 months is $313.00 x 3 = $939.00

cash in lieu of leave days for 5 months accrued since 2011 is $313.00 x 5 = $1565.00

damages in lieu of reinstatement for 8 months as applicant got alternative employment in March 2015 which is $313.00 x 8 = $2504.00

Total claim $10 955

Back pay

At the hearing the applicant correctly withdrew its claim for back pay for 19 months.  This in line with the case of Ambali v Bata Shoe Company Ltd 1999 (10 ZLR 417 (S) which states that an employee will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have been expected to find alternative employment.

In Leopard Rock v Van Beek SC 6/2000, it was held that damages and back pay are both damages, with the only difference being that damages are the wider concept.

The Supreme Court in Madhatter Mining Company v Tapfuma S-51-14, held that both back pay and damages must be within the same period, though varying time periods, dependent on the circumstances of each case.

Notice Pay and Cash in Lieu of Leave

As stated, the respondent did not turn up for the hearing.  Save for claiming, in the notice of response, to have paid the applicant the notice pay and cash in lieu of leave in terms of Section 13 of the Labour Act, no proof of such payment having been done was availed to this court.

I accordingly award both the notice pay and cash in lieu of leave as claimed.

Damages In Lieu Of Reinstatement

The claim for damages in lieu of reinstatement for 8 months before the applicant secured alternative employment is not really opposed by the respondent as it falls squarely within the principles set out in the case of Ambali v Bata Shoe Company supra.

There is proof on record of the applicant having secured alternative employment on 1 March 2015.

Though the respondent makes an averment in its notice of opposition that the applicant in fact set up a flea market in July 2014, no evidence of this was availed and the respondent did not bother coming to court to prove this.

Accordingly the claim for damages in lieu of reinstatement in the amount of $2504 is awarded.

In the circumstances the quantified award in favour of the applicant is as follows;

Notice pay					$939.00

Cash in lieu of leave			          $1565.00

Damages in lieu of reinstatement	          $2504.00

Total					          $5008.00

Simango & Associates, applicant’s legal practitioners