Divine Homes (Private) Limited v Constance Shalom Musesengwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/566/16
HELD AT HARARE ON 20TH JUNE, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/566/16

HELD AT HARARE ON 20TH JUNE, 2016 	    CASE NO. LC/H/131/16

AND 9TH SEPTEMBER, 2016

In the matter between:-

DIVINE HOMES (PRIVATE) LIMITED				    Appellant

And

CONSTANCE SHALOM MUSESENGWA				    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Ms R Mutindindi (Legal Practitioner)

For Respondent	:	Mr M Mututu (Legal Practitioner)

MHURI J.

The legal position was established in the case of

AMBALI vs BATA SHOE COMPANY 1999 (1) ZLR 417 (S)

that a dismissed employee has a duty to mitigate his loss by looking for alternative employment.  This duty arises immediately upon dismissal.

It is also an established principle of the law that he who asserts bears the onus of proof.  In computation of damages it is the claimant who bears the onus to prove his claim by adducing evidence.

See:

FIRST MUTUAL LIFE ASSURANCE

vs

JACKSON MUZIVI 2007 (1) ZLR 325 (S)

It is on these two legal principles that Appellant’s appeal is based, the grounds being that the Arbitrator grossly misdirected himself at law by making a finding that Respondent was not obliged to immediately mitigate her loss upon dismissal and also that the Arbitrator erred in quantifying damages without hearing evidence in mitigation.

I find that the appeal is premised on a point of law in compliance with Section 98(10) of the Labour Act [Chapter 28:01] hence it is properly before the Court.

On the 21st July, 2015, the Arbitrator issued an award which gave rise to an application of quantification of damages.

Appellant was ordered to reinstate Respondent to her former position without loss of salary and benefits.  In the event that reinstatement was not an option, Appellant was to pay Respondent damages in lieu.

It is clear from the award that back pay and benefits were payable as the award carried a retrospective connotation.

CHEGUTU MUNICIPALITY vs MANYORA 1996 (1) ZLR 262.

Back pay and benefits are payable from date of dismissal (or date ordered by the Arbitrator) to the date of the order of reinstatement.

See:

REDSTAR WHOLESALERS vs EDMORE MABIKA SC 52/05

and

OLIVER CHIRISERI & ANOTHER vs PLAN INTERNATIONAL

SC 56/2002

In his analysis and findings, the Arbitrator stated the following –

“However it is pertinent to note that the reinstatement ought to have been done together with payment of salary and benefits from the date of the unfair dismissal to the date of the award…”

I do not find any fault in the Arbitrator‘s analysis and finding as alluded to, the award had a retrospective effect.

In casu, the Arbitrator found, and it is not in issue, that Respondent was not entitled to damages as she is the one who declined Appellant’s offer of reinstatement.  This finding finds support in the case of

B H P MINERALS ZIMBABWE (PRIVATE) LIMITED

vs

TAKAWIRA 1999 (2) ZLR 77 (S)

in which the position was made at page 80 A – B that

“The point to be made is that an employee who refuses reinstatement abandons any claim for damages in respect of the period subsequent to the date of the order reinstating him.  His damages will normally be limited to …”back pay” from the date of wrongful dismissal.”

Having made the finding, what was then left for the Arbitrator was to calculate the back pay and benefits.  He states in his award –

“In any case, even if the Respondent was to reinstate the claimant, the Respondent was still supposed to pay the claimant back pays from the date of the dismissal to the date of the award.  In the same manner the Respondent is still supposed to pay the claimant her back pays as ordered by the award and that will fully compensate her loss.”

This finding is beyond reproach in my view.  Respondent was entitled to the arrear salaries and benefits.  Her duty to mitigate her loss only arose from the date of dismissal – see Ambali’s case (supra).  The Arbitrator found, from the evidence that Respondent was on suspension before, and therefore the duty to mitigate her loss did not arise.  This was the correct application of the law.

See:

ZIMSUN HOTEL (PRIVATE) LIMITED vs LAWN 1988 (1) ZLR 143

and

MAGUCHU vs LEVER BROTHERS (PRIVATE) LIMITED 2000 (2) ZLR 187 (S)

where it was held that an employee who has been wrongfully dismissed cannot claim reinstatement if after his dismissal, he takes up alternative employment.  By doing so, he repudiates the contract of employment and can only claim arrear salary and benefits up to the time he takes up the other employment.

I am also in agreement with Respondent’s submission that the duty to mitigate applies to damages for the premature loss of employment and not to back pay and benefits.

Overally I find that the Arbitrator was correct in his analysis and findings, hence the award is impeachable.

To that end, the appeal cannot be allowed.  It is therefore ordered that it be and is hereby dismissed with costs.

MATSIKIDZE AND MUCHECHE – Appellant’s legal practitioners

BOTHWELL NDLOVU ATTORNEYS AT LAW – Respondent’s legal practitioners