Charles Msimanga v Golden Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/75/25
HARARE, 16 JANUARY,2025 AND
26 FEBRUARY 2025
CASE NO LC/H/1173/24
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 16 JANUARY,2025 AND 26 FEBRUARY 2025

CHARLES MSIMANGA

GOLDEN VALLEY MINE

JUDGMENT NO LC/H/75/25

CASE NO LC/H/1173/24

APPLICANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant

For Respondent

- G. Ncube, Attorney

- B.S. Ziwa, Attorney

MUSARIRI, J:

On 12th April2024 this Court ordered respondent to reinstate applicant or pay himdamages in lieu of reinstatement. The parties failed to agree on the implementation of the order. Then on 11th November 2024 applicant filed the present application for the quantification of his damages in lieu of reinstatement. The respondent opposed the application.

In his founding affidavit applicant stated as follows,

“21.	I pray that this honourable court may award damages upon a consideration of the following:

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JUDGMENT NO LC/H/75/25 CASE NO LC/H/1173/24

21.1	I had been in the employ of the respondent from November 2006 until November 2022 with the benefits of a company house and a company car.

21.2	I was entitled to fuel allowance without a defined restriction.

21.3	I have reached the age of 65 and by virtue of my age, it is difficult to secure alternative employment.

27.	In respect of the 17 months form the date of dismissal till the court order

reinstating me, I would have earned US$38,811.51, which amount I am claiming (as back pay ).

31.	I pray therefore that this honourable court grant me this fuel allowance in the sum of US$263.20 per month (US$1.88 multiplied by 140 litres ) which translates to US$4,474.40 for the 17 months up to the court order reinstating me.

36.	However, all my applications (for alternative employment) have been to date unsuccessful, which I suspect is due to my age.

37.	In this regard, I respectfully claim damages in the sum of US$64, 490.90 which is calculated from my salary of US$2,283.03 by 30 months.

38.	At the time of this application, close to 24 months have passed since my unlawful dismissal and I have not been able to obtain alternative employment during that period. I find a period of 30 months to be reasonable in the circumstances given my age.

Wherefore I pray for an order ………”

On the basis of these avernments applicant prayed for the following items

(a)	Back pay	US$ 38,811.51

(b)	Fuel Allowance	US$ 4,474.40

(c)	Damages

(d)	Total

US$ 68,490.90

US$ 111,776.81

The respondent countered through its opposing affidavit thus,

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JUDGMENT NO LC/H/75/25 CASE NO LC/H/1173/24

“5.1.	Whilst it is correct that the applicant was engaged in November 2006 and discharged in November 2022, the period of employment is of no significance in an application for quantification of damages for unfair dismissal.

5.2.	I aver that the applicant reached the age of retirement of 65 in 2022 being the year of his discharge. The applicant was born on 09 May 1957.

5.7.	It is denied that the applicant was entitled to fuel allowance. If he received any, which is denied, it would have been a discretionary benefit.

10.7.	Further, I aver that the damages that should be paid to the applicant should be for three (3) months using the applicant’s monthly salary of US$ 935.32 plus

ZWL 365 810.17 converted to ZIG.

10.8.	The total is US$ 2,805.96 plus ZIG 428.18. I attach herewith the Reserve Bank of Zimbabwe Circular on the conversion of ZWL amounts to ZIG currency i.e. 2498.7242.

10.9.	I aver that the Applicant has failed to prove that he mitigated his loss and therefore has no basis to claim for a period above three months.”

Analysis

The applicable law is set out in the case of

Leopard Rock vs Beek 2000 (1) ZLR 251 (S) Per McNally JA

“Back-pay is thus a concept associated with reinstatement. If an employee is reinstated she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal, but is not reinstated will be entitled to ‘damages’, a major component of which will be bak-pay. Perhaps more correctly, one should say the damages will be assessed by

reference to the back-pay lost. But here the 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. “

Underlined for emphasis.

The Leopard Rock case makes it clear that in a damages claim there is no entitlement to

back-pay from dismissal to the reinstatement order. The critical exercise is the assessment of the reasonable period within which the dismissed employee could have obtained alternative employment. The issue of retirement age is covered in the Collective Bargaining Agreement: Mining Industry (Pension Fund) S.I. 14/16.

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Section 11(4) reads

“Mine-managers. Any mine manager whose employer has elected to participate in the fund on his or her behalf in terms of these rules shall participate in the Fund as an

employee member, and any reference to an employee member in these rules shall be deemed to include a mine-manager who is participating in the Fund and any reference to an

employer shall be deemed to include the employer of such mine-manager.”

Section 19 then provides that

“The normal retirement age for each employee will be the first day of the month next following the attainment of the age 60:”

Applicant was employed as a manager. His payslip for November 2022 shows that the

employer made the 7.5% pension deduction thus confirming that he was a member of the Fund. His retirement age was 60 (sixty) years of age which he had already attained at the time of his dismissal. This effectively means that respondent as employer has no obligation to pay appellant beyond the three (3) months offered.

In addition applicant is entitled to compensation for fuel, car and housing benefits over the 3 months period.

Applicant did not quantify the car and housing losses. However, he quantified his fuel loss

at USD$ 263.20 per month which adds up to US$ 789.60. The total award is made up thus

Fuel	789.60

Salary                       2 805.96 USD$ 3 595.56

ZIG	428.18

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Wherefore it is ordered that;

1.	The application for quantification of damages in lieu of reinstatement be and

is hereby granted;

2.	The respondent shall pay applicant the amounts of USD$ 3,595.56 and ZIG 428.18 together with interest thereon from the 30th November 2022 (date o dismissal) to the date of payment; and

3.	The respondent shall pay 50% of applicant’s costs of suit.

G. MUSARIRI J-U-D-G-E

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