Enisia Sigauke V NetOne Cellular (Pvt) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/571/2016
HARARE, 25 JULY 2016
CASE NO. LC/H/64/16
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/571/2016

HARARE, 25 JULY 2016			          	       CASE NO. LC/H/64/16

AND 23 SEPTEMBER 2016

In the matter between:-

ENISIA SIGAUKE						Appellant

And

NETONE CELLULAR (PVT) LTD				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		Mr S.V. Hwacha (Legal Practitioner)

For Respondent		Mr E. Matinenga (Legal Practitioner)

MAXWELL, J:

This is an appeal against an arbitral award delivered on 5 January 2016.  Appellant is aggrieved by the part of the award that refused her back pay up to the time the employer made the election to pay damages in lieu of reinstatement and also the part that dismissed some special and punitive damages and benefits.  The arbitral award in issue states that on 10 March 2014 an award was given which ordered in paragraphs 6 and 7.

“6.	That the claimant be and is hereby reinstated without loss of salary and benefits with effect from the date of her dismissal.

7.	That if, pursuant to 5, reinstatement is no longer tenable, the claimant be and is hereby awarded damages in lieu of reinstatement, the quantum of which is to be fixed by agreement of the parties.  If the parties fail to reach agreement on the quantum, this arbitral will fix the quantum pursuant to separate arbitration proceedings on quantification.”

Subsequently the parties did not agree on the quantum of damages and quantification proceedings were held.  The resultant award was,

“1.	That as a finding of fact, the period reasonably required by the claimant to obtain similar or alternative and comparable employment from the date of dismissal is 36 months.

2.	That the respondent be and is hereby ordered to pay the claimant an amount of US$180 798,48 (less any tax deductions in terms of law) as damages in lieu of reinstatement within the contemplation of the arbitral award of 10 March 2014.

3.	That for the evidence of doubt, the US$180 798,48 to be paid to the claimant represents the claimant’s salary and benefits for a period of 24 months at the rate of US$7 533,27 as the claimant has already been paid back-pay for a period of 12 months.

4.	That for the further avoidance of doubt, the claimant’s claims, described in her application as “special/consequential damages”, be and are hereby dismissed for lack of jurisdiction by the arbitral tribunal.

5.	 That each party pays 50% of the arbitration costs.”

On 5 February 2016 appellant noted an appeal against part of the award on the following grounds.

“1.	The honourable Arbitrator erred in law when he failed to consider the principles applicable to damages in lieu of reinstatement in that he should have ordered back pay up to the time the employer made its election to pay damages in lieu of reinstatement and not before.  The employer deliberately delayed for a period of one year after the award without making an election either to reinstate or alternatively to pay damages in lieu of reinstatement.  Being an employee during that period and given that she could not take alternative employment the appellant was entitled to pay benefits.

2.	The honourable Arbitrator misdirected himself in law when he failed to consider without legal basis the claimant’s claim for special damages towards car loan penalties, personal loan penalties, medical bills, pension fund and penalties, sale and legal costs.

3.	The honourable Arbitrator also erred in law in failing to consider the principles applicable to a claim of punitive damages in terms of the law despite all the circumstances of respondents conduct and having found that the claimant was employed at a very senior level and that it would be difficult for her to get a similar job in the labour market and that she had presented evidence of the various efforts made to look for alternative employment.

4.	The court a quo also erred in law in failing to consider the claim for punitive damages after having found on the employer’s moral blameworthiness in publishing the media adverts announcing that claimant was amongst persons whose employment contracts were terminated through internal disciplinary hearings and thereby undermining her job prospects and lengthening the time she required to get a new job.

5.	The arbitrator erred in not granting the appellant benefits otherwise admitted by respondent in computing damages.

6.	The arbitrator erred in not granting the appellant legal costs.”

The appellant prayed for the setting aside of the paragraphs of the award that dealt with the issues in contention and their substitution with paragraphs that awarded,

“1.	salaries and benefits for the period between the order of reinstatement and the date of election by the employer to pay damages in lieu of reinstatement;

2.	claims for special/consequential damages, the quantum of which was to be determined by the arbitrator;

3.	punitive damages, the quantum of which was to be determined by the arbitrator; and

4.	legal costs.”

In response, respondent stated that an employee in appellant’s position has a duty to mitigate the loss of employment which arises soon after the loss of employment.  Respondent further stated that the findings of the arbitrator are backed by sound principles of law and are correct.  Respondent also further stated that appellant failed to prove the claim of punitive damages and that the issue of punitive damages deals with issues of fact and appellant has failed to demonstrate that the arbitrator grossly misdirected himself.  Respondent disputed making an admission before the arbitrator and stated that the issue of costs is a matter of discretion. Respondent contended that on the issue of costs appellant had not demonstrated that the arbitrator grossly misdirected himself in a manner that warrants the interference of the court.  Respondent prayed for the dismissal of the appeal with costs at an attorney client scale.

It is trite that a ruling on the quantum of damages is a ruling on fact and is thus not appealable unless it can be categorized as wholly unreasonable.  See V.I.P. Sports Bar v George Kanyoza SC 69/06.  In casu, I am not satisfied that the arbitrator misdirected himself in quantifying the damages payable to the appellant.  I am persuaded by the argument for respondent that the honourable arbitrator’s determination was correct and firmly supported by case authority.  I will proceed to consider the issues raised in the grounds of appeal.

The date from which damages are to be reckoned in casu

Appellant was dismissed on 10 March 2013.  The arbitrator ruled that the dismissal was wrongful and unlawful in March 2014.  In April 2015 respondent advised appellant that reinstatement was not an option.  It was argued for appellant that the damages should be reckoned from the 15 April 2015 when respondent elected to pay damages in lieu of reinstatement.  It was further argued that as the appellant had been reinstated, she had no duty to mitigate.  It was however submitted for respondent that appellant immediately suffered loss from the date of her dismissal.  The duty to mitigate immediately followed.  This position is emphasised in a number of case authorities.  In United Bottlers v Charles Kauya SC 34/06, the Chief Justice stated at page 4 of the cyclostyled judgment.

“A wrongfully dismissed employee has a duty to mitigate damages by finding alternative employment as soon as possible.”

In that case, the Chief Justice also makes reference to the case of Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 where it is stated that if an employee is wrongfully dismissed the duty to mitigate loss arises immediately.  Counsel for appellant has not referred to any case that states the contrary.  He however advocates for a position where the court disregards the period between the wrongful dismissal and the order of reinstatement.  There is no legal support for that position.  As was stated in Ambali v Bata Shoe Co Ltd (supra) compensation is from the date of wrongful dismissal to the date when the former employee could reasonably be expected to find alternative employment.  Counsel for appellant made reference to the case of Standard Chartered Bank of Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 which clearly states that the employee in that case was on suspension without pay.  As stated in the United Bottlers case (supra) different considerations apply between a wrongfully dismissed employee and an employee on suspension.  In my view confusion might arise where the date of the order of reinstatement is different from the date where the election to pay damages in lieu of reinstatement is made.  That confusion need not arise as the date from which the duty to mitigate arises is always before either the date of the order of reinstatement or the date of election of paying damages in lieu of reinstatement.  In Madhatter Mining Company v Marvellous Tapfuma SC 51/14 Gwunza JA stated on page 9.

“……… damages in lieu of reinstatement become due and are to be reckoned from the date of an employee’s wrongful dismissal.  Further, that in relation to the period from and during which the damages are to be assessed, no distinction is made between the salary arrears and benefits on the one hand, and damages proper on the other.  All must be assessed within the same period albeit varying time periods and considerations peculiar to the assessment in question may apply.”  (Underling for emphasis)

Counsel for appellant also made reference to the case of Freda Rebecca Gold Mine Holdings Ltd v M Nhliziyo and Others SC 82/11.  In my view that case is inapplicable as it dealt with retrenchment.  In retrenchment proceedings the employment relationship exists until the employer proceeds with retrenchment. In casu the employment relationship was no longer in existence from the date of dismissal.  The fact that the dismissal is subsequently set aside does not change the date on which the duty to mitigate loss arose.  I therefore find the arbitrator’s position unassailable.

Special Damages

It was argued for appellant that Section 89 of the Labour Act [Chapter 28:01] empowers an arbitrator to grant damages in lieu of reinstatement.  That is a correct legal position.  However Counsel for appellant places claims for compensation for medical bills and penalty for default in mortgage instalments in the category of damages in lieu of reinstatement.  That has no legal basis and no legal authority has been cited in support thereof.  The arbitrator stated in page 3 of the award that special damages cannot be claimed in applications of this nature.  He referred to the case of Gaunlet Security Services v Leonard 1997 (1) ZLR 583 in which it is stated that the damages to be claimed must arise ex contractu. No authorities contrary to that position have been cited. I therefore find the arbitrator’s position unassailable.

Punitive Damages

Even though the third and fourth grounds of appeal dealt with a claim for punitive damages, nothing further was submitted on it.  The appellant’s heads of argument do not address the issue. I will therefore consider grounds of appeal number three and four to have been abandoned.  Even the prayer sought outlined on pages 26 to 27 of the heads of argument is silent on the issue.

Benefits alleged to have been admitted by respondent

It was argued for appellant that the arbitrator overlooked benefits in a schedule that had been produced by the respondent at the quantification hearing.  In response it was submitted for respondent that there is nothing on record showing that appellant was entitled to the allowances and benefits over and above the figure on the pay advise.  The appellant’s heads of argument state that annexure F was produced by the respondent at the quantification hearing.  This seems to be contrary to what the record of proceedings reflects. The statement of claim and affidavit in support of quantification of damages including punitive damages by the appellant is the one that makes reference to annexure F.  From the record therefore it appears that appellant compiled the schedule marked F and submitted it to the arbitrator.  The arbitrator therefore cannot be faulted for not awarding what was not proved to arise ex contractu.

Legal costs

Ground of appeal number six faults the arbitrator for not granting the appellant legal costs.  Nothing further was submitted to substantiate this ground of appeal.  The appellant’s heads of argument are silent on the issue and I will consider it abandoned.

In the final analysis I find no reason to interfere with the arbitral award. The appeal cannot succeed and the following order is appropriate.

The appeal be and is hereby dismissed with costs for lack of merit.

Dube, Manikai & Hwacha, appellant’s legal practitioners

C. Kuhuni Attorneys, respondent’s legal practitioners