Carswell Meats (Pvt) Ltd v Lovemore Murimbechi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/399/2016
HARARE, 16 FEBRUARY 2016 &
CASE NO LC/H/831/2015
23 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/399/2016

HARARE, 16 FEBRUARY 2016 &				         CASE NO LC/H/831/2015

23 JUNE 2016

In the matter between

CARSWELL MEATS (PVT) LTD						APPELLANT

Versus

LOVEMORE MURIMBECHI						RESPONDENT

Before the Honourable B S Chidziva J

For the Appellant	W Magaya (Legal Practitioner)

For the Respondent     F Ndou (Legal Practitioner)

CHIDZIVA J:

This is an appeal against an arbitral award by Hon T Mlilwana that was handed down on 24 August 2015. The arbitrator handed down the following award:

“(i)	Backpay  $280-00 x 12 months  		=  USD 3 360-00

(ii)	Damages  $280-00 x 8 months    		= USD   2240-00

(iii) 	Gratuity   $27% x $280-00 x 22 years	= USD   1163-20

(iv)	Leave Pay $280-00 x 2 months		= USD     560-00

Total						  USD  7 323-00”

The award was to be complied within two weeks of receiving the award.

The background of this matter is that the respondent was employed by the appellant as a Cutter for twenty-two years. On 8 March 2014 the respondent was dismissed from employment on allegations of dishonesty, unlawful taking of property with the intention of depriving permanently the use of such property. After dismissal by the disciplinary committee the respondent appealed to the Mashonaland Local joint Committee which also upheld the dismissal. The respondent further approached the Negotiating Committee which upheld the respondent’s appeal and ordered his reinstatement without loss of salary and benefits from the date of unlawful dismissal. The appellant did not comply with the order and the respondent took up the matter for arbitration.

The grounds of appeal against the arbitral award are as follows:

The arbitrator erred by splitting back-pay and damages and awarding both to the respondent.

The arbitrator erred by awarding leave pay to the respondent without proof from the respondent that he was owed such leave pay.

The arbitrator erred in awarding the respondent eight months ’salary without any evidence to prove the damages.

The respondent in response stated that:

Damages and back-pay are two distinct things which are paid separately to a complainant who is unfairly dismissed. Damages are meant to compensate the respondent for loss of his employment.

The appellant failed to prove that the respondent had used up all his leave days.

The eight months was the period within which the respondent would have reasonably secured another job.

What is to be decided is:

Whether the arbitrator erred by awarding back-pay and damages to the respondent separately.

Whether or not the learned arbitrator erred in awarding leave pay to the applicant.

Whether or not the arbitrator erred in awarding eight months’ salary to the respondent as damages.

The parties agreed that the respondent was entitled to gratuity amounting to $$1 163-20.

On the issue of damages and back-pay section 89 (2)(c)(i) and (iii) of the Labour Act [Chapter 28:01] states that:

“(i)	any back-pay from the time when the dispute or unfair labour practice arose.

(ii)	any such determination shall specify an amount of damages to be awarded to the employee concerned as an alternative for his reinstatement or employment.”

This section shows that the two can be paid as two distinct things to a person who is unfairly dismissed. The back-pay is for compensating the employee the salary he could have earned had his contract of employment not been terminated prematurely.

However the case of Leopard Rock Hotel Company (Pvt) Ltd v Van Boek SC 6-2000 explains the issdue of back-pay and damages as follows:

“Back-pay is thus a concept associated with reinstatement. If an employee is reinstated she will normally be awarded back pay. If such succeeds in proving wrongful dismissal but is not reinstated she will be entitled to “damages” a major element of which will be back pay. Perhaps more correctly one should say damages will be assessed by reference to back pay cost but here back-pay will be limited to a period from the date of wrongful dismissal to a date by which she could with reasonable diligence have obtained alternative employment.”

Thus back-pay and damages are different concepts.

The arbitrator gave eight months as the time period the respondent could have secured another job. The only evidence before this court which shows that the respondent tried to mitigate his loss of employment is a letter from Hukakavanhu Butchery in Mbare dated 23 July 2014. There is no evidence to show that he made efforts to secure another job.

The respondent furthermore did not submit any proof that he was owed leave days by the time of dismissal.

Rule 28 (3) of the Labour Court Rules S I 59/2006 states that:

“If after a hearing has begun, the court as reconstituted under subrule (2) it shall be competent for the court as reconstituted to direct that any witness be recalled and to order further argument.”

Section 90A of the Labour Act also empowers the judge of the Labour Court to ascertain facts by any means which he or she thinks fit and which is not unfair or unjust to either party.

Both parties are not denying the issue of entitlement to back-pay. What is not clear is how the damages and leave days were calculated.

This court is therefore referring the matter back to the arbitrator and orders as follows:

It is ordered that:

The appellant pays to the respondent:

Back-Pay	$280-00 x 12months			=	$ 3 360-00

Gratuity $27% x $280-00 x 22 years		=	 $ 1163-20

The arbitrator to explain how he arrived at the time period of eight months as damages and also how he came up with the number of leave days.

The appellant to pay costs.

Coghlan, Welsh Guest, appellant legal practitioners

Mugiya & Macharaga Law Chambers respondent’s legal practitioners