Edgar Paratema v Totila Marketing (Eagle Liner)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/92/13
HELD AT HARARE ON 19 MARCH 2013
CASE NO.
JUDGMENT
LC/H/92/13
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IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT LC/H/92/13

HELD AT HARARE ON 19 MARCH 2013			CASE NO. LC/H/312/10

In the matter between:

EDGAR PARATEMA				-		Appellant

And

TOTILA MARKETING (EAGLE LINER)	-		Respondent

Before the Honourable President, E.F. Ndewere

For Appellant				Mr C.Chigwada (Unionist)

For Respondent				Mr E. Mangezi (Legal Practitioner)

NDEWERE E.F.

Background:

On 12 November, 2010, the Applicant won an appeal against his dismissal in this Court.  The order per President Musariri was as follows;

“1.The appeal is hereby allowed and dismissal of Appellant by Respondent is set aside;

2. Respondent shall conduct fresh disciplinary hearing before a new disciplinary committee and conclude same within thirty (30) days of this order failing which,

a) Respondent shall reinstate Appellant without loss of salary and benefits, or

b) Respondent shall pay Appellant damages for loss of employment in a sum either agreed by the parties or assessed by this court.”

On 26 July, 2011, President Matanda-Moyo gave a default order, confirming that since Respondent had failed to determine the Applicant’s case within 30 days in terms of President Musariri’s judgment, the Applicant was entitled to reinstatement or alternatively, to payment of damages.

The Respondent did not reinstate the Applicant in terms of the above order.  The Applicant then applied for the assessment of damages to this Court in terms of paragraph 2 (b) of President Musariri’s order.  On 7 May, 2012, President Chidziva gave a default order of damages to the Applicant when Respondent failed to appear.  On 28 August, 2012 President Chivizhe rescinded the default order.  The matter is now before me for the assessment of damages.

The Applicant filed supplementary submissions in support of his claim of damages; detailing every claim and the basis for the claim.  The court went through the items with the parties one by one.

The claim, after discussions, clarifications and mathematical corrections came to the following:

Back pay	(i) Salary from February 2010 to April 2011,

(14 months at R5 500)=		R77 000

(ii) Salary from May 2011 to January 2013

(R5 500 x 21 months)=		R115 500

Total salary arrears =		R192 500

(77 000 00 +115 500)

Cash in lieu of notice		=		R5 500x3months

=		R16 500

Cash in lieu of leave		=		R5 500x6 months

R33 000

Bonus pay for 2010,2011

and 2012, in Rand component=		R8 920

the US$ Component		=		US$760

Housing allowance February

2009 to June 2011 at

US$25 per month		=		US$725

and

for July 2011 to January 2013

At $35 per month		=		US$665

$1 390

Overtime hours for 2008

And 2009				=		160-(2008)

380 (2009)

Total					=	468 hours

multiplied byR36 per hour		=	R16 848

Night Driving, 196hoursx1¼hoursx8hoursxR30

=	R47 040

Night Allowance – Total nights		130x60

=	190 nights

Multiplied byUS4.00 per night	=	US$760

Gratuity (R5 500x11%x6years		=	R3 630

TOTAL CLAIM

The Rand Component

Salary arrears			192 500

Cash in lieu of notice		 16 500

Cash in lieu of leave		 33 000

Bonus Pay (rand component)	 8 920

Overtime				 16 848

Night Driving				 47 040

Gratuity				  3 630

Total					R 318 438

The US Component

Bonus pay				     760

Housing allowance			  1 390

Night allowance			     760

Total					  2 910

In addition to the claims for backpay the Applicant also asked the court to award damages for the unlawful and premature termination of his contract.  He asked for two and a half years salary, arguing that it was difficult to get a new job on the market in view of the harsh economic climate.  He also said his health had been negatively affected by the hardships he had to endure following the unlawful job termination and this may affect his chances of getting another job and he produced, by consent, a doctor’s report showing that he was receiving medical treatment.

In response to the claim for back pay, Respondent’s counsel submitted that he had no full instructions on the quantum of the claim.  He said he had contacted his client more than once and they said they were still considering the issue.

The Court is not surprised by the Respondent’s stance because the Court record is full of paperwork showing that the Respondent was in default on most occasions and had not complied with requests for proof of Applicant’s earnings.  The only inference which the Court can draw from the Respondent’s indifference to the claim is that it knows it has no defence to the claim.  Accordingly, the Court is satisfied that the Applicant has proved his claim for back pay on a balance of probabilities.

On damages, Respondent’s counsel submitted that 2½ years salary is too much since the applicant is also supposed to mitigate his loss.  He submitted that in his view the Applicant should be able to secure a job within a nine month period.

The Court has weighed both submissions and it feels that an award of twelve months salary as damages for the unlawful job termination would meet the justice of this case.

WHEREFORE it is ordered as follows:

That the application for assessment of damages succeeds and, the Respondent is ordered to pay the following to the Applicant;

Back pay						R318 438

and

US$2 910

Damages						R66 000(R5 500x12)

That the Respondent be and is hereby ordered to pay the above amounts within three months from the date of this order.

Each party to pay its own costs.