Dearly Sitima v Unifreight Africa Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 21 JUNE,
LC/H/187/23 CASE NO.
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IN THE LABOUR COURT OF
ZIMBABWE HARARE, 21ST JUNE,
2023 AND 4TH, JULY, 2023

DEARLY SITIMA
And
UNIFREIGHT AFRICA LIMITED

Before the Honourable Kachambwa, Judge;

P. Makurumure (Legal Practitioner)
T. Mupamhad zi (Legal Practitioner)

For Applicant:
For Respondent:

KACHAMBWA, J:

The Application

1. This is an opposed application for quantification of damages in lieu of reinstatement. It is made after the employer has not reinstated the employee and there were no negotiations to settle the matter. It is one of those many cases where parties do not want to co-operate and resolve their issues out of court. An unnecessary flexing of muscles.


2. Both parties have referred to the usual case laws such as; Ambali v Bata Shoe Company 1999(1) ZLR 203(S)


These cases show that-

2.1. Damages for failure to reinstate are calculated from the date of cession of employment to the date the employee is expected to have found alternative employment;

2.2. The employee may only be paid his contractual benefits for the said period;

2.3. It is for the employer to show that the employee could have found alternative employment;

2.4. The employee has to show that he incurred medical expenses for such to be paid;

2.5. Transport allowance is paid for one going to work;

2.6. The employee has to prove his/her damages. It is not a thumbsuck claim;

2.7. The employee has a duty to mitigate his damages by seeking alternative source of income but it is also for the employer to show that such source of income was there for the taking; and

2.8. The court makes a value decision on the claim;

2.9. The rates applicable are the rates as at the time of dismissal or cessation of payment of salaries.

The Claim

3. The applicant has made a claim for the outstanding payments to the date of the order of reinstatement and thereafter payments of damages up to his date of retirement, which is a claim for a whooping 108 months or 9 years!. This is at a rate which is not the rate at the time of dismissal. As expected this quantification was opposed. The rate at the time of dismissal was **$2W 20671,86**. That is the applicable rate. This rate should also be applied to cash in lieu of leave days accumulated to the date of dismissal. The applicant would be entitled to the cost of living adjustment and housing allowance for the time until the time he is expected to have found alternative employment. Bonus and gratuity are only payable if they were contractual. There is no such proof on record. In fact the evidence is that they are discretionary.

The Damages Period and Awards

4. The respondent offered six months damages. This is against the massive nine years and the other period of backpay which also came up to nine years. So all in all it was eighteen years. One wonders whether the applicant was serious. There is no precedent for such a claim.

5. There are graduates from our universities, technical colleges and other institutions walking in the streets looking for work. Even Engineers and Medical doctors are said to be struggling to make it. Thus the issue of getting alternative employment is increasingly becoming academic. Nevertheless damages of eighteen to thirty six months are in the range. Six months is certainly on the very low side. Therefore damages of twenty months at the rate of $20 671,86 would be in order for the salary. Cost of living and housing allowance at $22 498,08 and $3 973,50 are also in order. Cash in lieu of leave for the 39.31 days is also awarded. No award for gratuity and bonus. These are discretionary. No award for transport as the applicant was not going to work.

6. The award stands as follows:-

6.1. $ZW 20 671-86 x 20 = 413 437-20
6.2. $ZW 22 498-08 x 20 = 449 961-16
6.3. $ZW 3 937-50 x 20 = 78 750-00
    $ZW 20 671-86 x 39.31
6.4. days = 812 610 - 82-
    **Total** **Rtg$** **168.198.38**


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The applicant is awarded the amount of Rtg$ 2 168 198-38 less any statutory payments.

The respondent shall also pay the costs of suit.

7. While the applicant will be a millionaire on this award it is sad to note that at today’s exchange rate this could be well below 200 United States dollars. This brings in question whether there is adequate compensation. This is a question for another day. In the economy that we find ourselves in one has to question whether the law which says that the rate applicable is as at the time of dismissal is serving out justice. Would it now be more equitable to convert the award at that date into United States dollars in order to preserve the value?. The award would then be in United States dollars at that time and payable in United States dollars or the equivalent at the time of payment. This is an issue requiring serious attention otherwise these awards, at the rate the inflation is eating the local currency, will go into minus when converted to United States dollars. This is an argument for another day. It is not before the court.

In the result the court awards as follows;

1. The respondent be and is hereby ordered to pay the applicant the sum of Rtg$ $2 168 198-38 less statutory deductions.


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