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Cornway College v Priscilla Zengeya

Labour Court of Zimbabwe8 January 2016

[2016] ZWLC 3LC/H/03/162016

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### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/03/16
HELD AT HARARE ON 29th SEPTEMBER, 2015
CASE NO. LC/H/524/14
AND 8th JANUARY, 2016
JUDGMENT NO. LC/H/03/16
---------

IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO. LC/H/03/16

HELD AT HARARE ON 29th SEPTEMBER, 2015 CASE NO.LC/H/524/14

AND 8th JANUARY, 2016

In the matter between:-

CORNWAY COLLEGE Appellant

And

PRISCILLA ZENGEYA Respondent

Before the Honourable Mhuri, J.

For Appellant : Mr. Pasipanodya (Legal Practitioner)

For Respondent: Mr. K. Gama (Legal Practitioner)

MHURI J.

By an award dated the 28th February, 2014, the Arbitrator found that Respondent had been unfairly dismissed and ordered that she be reinstated to her position without loss of salary and benefits. In the event of reinstatement not being possible, Respondent was to be paid damages.

Having failed to reinstate Respondent, the matter was placed before the Arbitrator for quantification of damages.

After hearing both parties’ oral submissions and considering their written submissions, the Arbitrator issued the following award:-

Back pay $ 9 572,55

Damages in lieu of reinstatement $ 37 489,00

Vehicle use $ 36 905,00

Cash in lieu of leave $ 14 992,00

Monthly fuel allowance $ 720,00

School fees subsidy $ 1 100,00

Total net $100 778,55

It is this award that Appellant took issue with and appealed to this Court.

In brief, Appellant’s case is that the back pay must be included in the damages, Respondent was not entitled to vehicle use, cash in lieu of leave and the school fees subsidy.

Appellant’s submissions were that the back pay and damages are wholistically considered in computing the time frame in which an employee is expected to find alternative employment. This would mean that the 8 months awarded to Respondent as back pay ought to have been deducted from the 20 months awarded to Respondent as damages. This left 12 months and from this 12 months it should be calculated how much time it would have taken Respondent to find employment.

As rightly submitted by Respondent’s counsel, this Court is not sitting as a Court of first instance but as a Court of appeal and its duty is not to re-calculate the damages awarded.

What the Court is enjoined to do is to consider whether the Arbitrator correctly applied the principles applicable in quantification of damages. If she did not, then this court will be at liberty to interfere but if she did, that is the end of the matter.

The cases of

REDSTAR WHOLESALERS V MABIKA SC 52/2005

AND

OLIVER CHIRISERI 2. FREDRICK CNINYENZE V PLAN INTERNATIONAL SC 56/2002

establish the principles applicable in quantifying back pay and damages as follows:

That the date to which back pay should be payable is the date on which the order of reinstatement is made.

Damages are calculated on the basis of the length of time – calculated from the date of dismissal, which it would reasonably take the dismissed employee to find alternative employment.

Court is to hear evidence as to how long it would take to find alternative employment.

Benefits must be a right flowing from one’s contract of employment.

In casu, the date of unlawful dismissal was 1st October, 2013 and the date of the order of reinstatement was 28th February, 2014 (5 months). This is common cause.

The Arbitrator applied the correct principle and awarded 5 months back pay. This was a correct application of the principle as enunciated in the two cases cited above. I do not find any misdirection on the part of the Arbitrator.

It is also common cause that Appellant did not reinstate Respondent. As a result the alternative of payment of damages automatically came into play.

In the case of OLIVER CHIRISERI AND ANOTHER (Supra) SANDURA JA (as he then was) had this to say at page 6 of the cyclostyled judgment,

“In my view, where the order of reinstatement indicates that retrospectivity was intended, the damages to be paid in lieu of reinstatement must include back pay and benefits.”

In the case of

LEOPARD ROCK HOTEL COMPANY (PRIVATE) LIMITED

VAN BEEK 2000 (1) ZLR 251 (S) at 254 H-255A

it was stated

“…back pay and damages are indeed different concepts, but only in the sense that ‘damages’ is a wider concept. It will normally include back pay but may include for example, compensation for loss of promotion prospects, interest and other elements as appropriate.”

The Arbitrator’s award of the 28th February, 2014 as captured in the background information of the application for quantification of damages shows that retrospectivity was intended and that the damages must include back pay.

The Arbitrator in her award (quantification) calculated the amount of back pay (5 months’ salary) and the amount payable for loss of employment (20 months’ salary). The net salary as cumulative damages included back pay. I am not persuaded by Appellant’s submission that the 20 months must have included the 5 months therefore the 5 months must be subtracted from 20 months. This submission flies in the face of the principle stated above.

I find no unreasonableness in the manner the Arbitrator computed the back pay and the amount payable in lieu of reinstatement.

The award clearly shows that the Arbitrator was alive to the principles applicable when quantifying damages. She referred to the cases

OLIVINE INDUSTRIES (PRIVATE) LIMITED v NHARARA 2006 (1) ZLR 203 (S)

DULY HOLDINGS LIMITED v SPANERA 2005 (1) ZLR 407 (S)

LEOPARD ROCK HOTEL v VAN BEEK 2000 (1) ZLR 251 (S)

TELONE (PRIVATE) LIMITED v ZULU 2005 (1) ZLR 133 (S)

AMBALI v BATA SHOE COMPANY LIMITED 1999 (1) ZLR (S)

Respondent was claiming 36 months whereas Appellant was of the view that Respondent was entitled to 6 months as she had not mitigated her loss.

The Arbitrator considered the parties submissions, the evidence before her and the applicable principles and in her final analysis she stated,

“At the end of the day a balance needs to be struck between the two; what the claimant is advocating for and what respondent is offering. I have to give an award which must not grievously undermine an organisation’s sustainability and at the same time one which would represent a fair and just compensation to the claimant for loss of employment. This is also aggravated by the fact that the economy of the country is still shaky and companies are retrenching instead of recruiting ……”

In the result, the Arbitrator awarded 20 months.

It was the Respondent’s duty to mitigate her loss. She placed before the Arbitrator, an affidavit which detailed how without success she tried to mitigate. She proffered that the reasonable time it would take her to obtain alternative employment was 36 months. This was rejected by the Arbitrator.

In KUDA MADYARA V GLOBE & PHOENIX INDUSTRIES (PRIVATE) LIMITED t/a RAN MINE SC 63/02

citing with approval

NYAGUSE V MKWASINE ESTATES (PRIVATE) LIMITED 2000 (1) ZLR 571 S

the position was established that the burden of showing that Appellant earned or ought to have earned some money during the relevant period rested on the Respondent.

In casu, Appellant did not show that Respondent earned or ought to have earned some money during the relevant period. The Arbitrator was therefore correct when she stated,

“The Respondent did not show that the claimant let chances go by.”

In my view therefore the 20 months awarded by the Arbitrator cannot be categorised as grossly unreasonable as to warrant interference.

Was Respondent contractually entitled to vehicle use, fuel allowance, leave, school fees subsidy? If she was, then the Arbitrator did not misdirect herself when she awarded these. If they did not arise ex-contractu, the award is subject to interference.

The position in this case, is that there was no written contract of employment between the parties. This could have assisted the court in answering the above question. Placed before the Arbitrator were motor vehicle repair invoices and payslip as proof of the Respondent’s claims.

The invoices in my view do not prove that Respondent was entitled to a motor vehicle use. Record page 50, Receipt No. 6757 of $35,00 for p/test and skim cannot be said to be proof of motor vehicle use.

Invoice No. 070 Exhaust welding right round and main front cannot be said to be proof of motor vehicle use.

Invoice 05 starter repairs for Nissan presea. Quotation for Nissan presea ABF 5940, These too cannot be proof of motor vehicle use.

It is on the basis of these documents that the Arbitrator grossly misdirected found in favour of Respondent and awarded the motor vehicle use claim.

I find that with such scanty information or proof the Arbitrator grossly misdirected herself. It is trite that he who alleges must prove. The claim for motor vehicle use, therefore cannot be allowed to stand.

The payslip dated 23rd March, 2013 produced before the Arbitrator shows that Respondent was entitled to transport allowance of $400,00. Fuel allowance of $30,00 per week is not stated. To then grant fuel allowance where no proof has been tendered was a gross misdirection on the part of the Arbitrator.

This claim cannot be allowed to stand.

As regards school fees subsidy, it is not in dispute that Respondent was entitled to it, through her child who was attending Appellant’s school. Appellant’s contention on the award of this claim is that Respondent had voluntarily removed her child from the school, so it should not have been awarded. I find this argument to be without merit. Respondent had been dismissed from Appellant’s employ, she was not reinstated, was she therefore expected to leave her child at this school where she had been dismissed, I guess not.

I did not hear Respondent challenge the submission that the school fee subsidy was only applicable where one has a child enrolled with Appellant and where there was none, it was not payable as cash.

In that regard, Respondent was supposed to submit proof of invoices of fees she expended at the new school her child was then enrolled at. In the absence of such, the Arbitrator grossly misdirected herself when she awarded that claim.

As regards cash in lieu of leave, Respondent averred in paragraph 22 (a) of her affidavit that

“Apart from a salary, I was entitled to:

Annual leave, in terms of Section 14A of the Labour Act [Chapter 28:01].

………………………………………………………………………………………………………………………”

She did not state how many leave days she had accrued. The payslip referred to earlier in this judgment shows that Respondent had zero (0) leave days due to her (by the 23rd March, 2013).

Appellant’s submission in its replication and before this Court was that Respondent went on holiday (3 times ie (3 months) per year) each time the school closed. This submission was rejected by the Arbitrator on the basis that school holidays are not synonymous with leave vacation. I agree with this finding. Being on school holiday does not mean one is on vacation as far as other duties are concerned. It is the teaching sessions which are suspended during this period and not administrative duties.

The Arbitrator was correct in my view. She awarded the claim for leave for 8 months covering the years 2006-2013 as per her claim.

In its oral submissions before this Court Appellant raised, but did not take it further, the issue that the dispute was prescribed. Prescription is a point of law, which can be raised at any time for as long as it is covered in the pleadings and does not cause prejudice to the other party.

See:- COLE V UNION GOVERNMENT 1910 AD 263

“…and the mere fact that a point of law brought to Court’s notice was taken at an earlier stage is not in itself a sufficient reason for refusing to give effect to it.

If the point is covered by the pleadings, and if its consideration on appeal involves no unfairness to the party against whom it is directed, the Court is bound to deal with it.”