Estate Late George Dikinya v ZIMNAT Life Assurance Company Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/42/2023
HARARE, 23 JUNE 2022
CASE NO LC/H/629/05
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/42/2023

HARARE,  23 JUNE 2022 			 	   CASE NO LC/H/629/05

8  FEBRUARY 2023

In the matter between:-

ESTATE LATE GEORGE DIKINYA			APPLICANT

ZIMNAT LIFE ASSURANCE COMPANY		RESPONDENT

LIMITED

Before the Honourable Makamure J, Musariri J and Kudya J

For the Applicant		T. Sibanda (Legal Practitioner)

For the Respondent		Innocent Chagonda (Legal Practitioner)

KUDYA, J:

This is an application for the quantification of damages due to the estate of the late employee one George Dikinya.  This follows a remittal by the Supreme Court where it was ordered by consent that:-

The appeal be and is hereby allowed.

The judgment of the Labour Court judgement  No  LC/H/784/15 per Makamure J dated 9/12/16 be and is hereby set aside.

The matter is remitted to the Labour Court to carry out a proper quantification of the damages due to the respondent based on the evidence on the record and any other relevant evidence.

As regards quantification the Labour Court shall take into account the following:-

Each separate head of damages claimed

The period in respect of which each head of damages is claimed.

The Zimbabwe Dollar component of each head.

The rate(s) of exchange applicable to each head.

The United States Dollar equivalent of each head awarded and

The principles set out in Madhatter Mining Company  v Tapfuma   SC-51-14.

It is settled that damages can only be awarded when sufficient evidence has been led to justify them.  See

Ruturi v Heritage Clothing (Pvt) Ltd 1994(1) ZLR (S) 374

First Mutual v Muzivi  2007 (1) ZLR 325 (S)

Heywood  v  Zakeyo   SC-32-13

The court should not engage in a thumb sucking exercise by just plucking figures from the air and awarding that as damages. Before delving into each of the claimed heads it is important for the court to first establish the dismissal date of the employees. The record is replete with evidence that about April 2004 the employee was transferred to TA Holdings against his will from ZIMNAT.  He protested the transfer all the way up to March 2005 when he was laid off following disciplinary proceedings into misconduct allegations levelled against him.  He thus ceased to receive a salary at the end of March hence from 1 April 2005 he stood dismissed.  It is this court’s view that whatever damages he is claiming should be from the date of his dismissal being 1 April 2005.

It is also common cause that he obtained alternative employment with AMSCO and seconded to Appolo, a Kenyan Company from 1 October 2005.  He thereafter lost his job with AMSCO at the end of 2006.  He attributes his job loss to ZIMNAT saying that they interfered with his job hunt given the  pending cases that he had with ZIMNAT.  His view is that ZIMNAT gave unfavourable references to his employer AMSCO and  other potential employers.  In his view his duty to mitigate his loss was thwarted by his ex employers ZIMNAT to that extent.  It is thus his considered view that his damages should extend all the way to the date when the Supreme Court ruled that he had been unfairly dismissed.

It is settled law that a dismissed employee should mitigate his loss by looking for alternative employment or engaging in other income generating ventures. See  Ambali v Bata Shoe Company 1990(1) ZLR 417 (S).  A reading of the record before the court demonstrates beyond doubt that the employee mitigated his loss and did obtain employment with AMSCO.  The  employer has no problems paying damages for the period from the  employee’s date of dismissal to the date he obtained a job with AMSCO, that is from 1 April 2005 to 1 October 2005.  The period which the parties are arguing over is the period post 1 October 2005. The employee says he needs to be paid for that post 1 October 2005 period because it is his view that his  former employers pursued him and interfered with his job hunt.   The court is persuaded by the respondent employer’s argument that if there was any interference, that can not entitle the employee to punitive damages but that it is a delict which may need to be pursued in another forum.  The court is persuaded by that argument to the extent that its view is that post 1 October 2005 the employee could not claim anything from the former employer ZIMNAT. The former employer even went to the extent of making an offer of paying the damages for 1 April to 1 October 2005 using the rate of the benefits claimable by the current sitting person in the same position as was held by the employee at ZIMNAT. The employee was however adamant that he could not take that offer up as he verily believes that his entitlement goes beyond 1 October 2005. Having already ruled on the period of entitlement all that is left for the court to deal with is each of the claimed heads for the 7 months period when the employee had been unlawfully dismissed and had not been employed.

It is also the court’s considered view that the principles set out in Madhatter v Tapfuma  SC-51-14  2014(2)ZLR 125  also need to be restated as they have been said by the Supreme Court to be used to determine this matter.  In summary form Madhatter (supra) emphasises the fact that one has to mitigate their loss once they have lost employment. See Ambali (supra).  It goes on further to say that the court needs to give a meaningful  quantification order taking into account the changes in currency and guided by expert actuarial evidence where there is need. It also  underscores the need to apply the principles of equity in coming up with a just judgment.. This having been said, each of the claimed heads is discussed below.

Salary

As indicated earlier the salary claimable is for the 7 months post Dikinya’s dismissal.  His salary as at 1 April 2005 was  ZWL 214 666 so total due to him for the  7 months is  ZWL 1 502 662.

Bonus

It is settled that bonus is at the discretion of the employer. In that regard no clear basis for the bonus claim has been made out so there would be no award in that respect.

Cash in lieu of leave

A claim for 122,2 leave days was made. It needs to be noted that the Labour Act makes it clear that leave can not accrue beyond 120 days. In view of the period when Dikinya should have been paid his leave days this would be for the 7 months duration.  His entitlement is thus a fraction of his monthly salary of ZWL 214 666 that is daily rate of  ZWL7155,53 multiplied by 2,5 days per month =  7,155,53 x 17 days  =  128,790. Total for leave days is thus $128,790 ZWL.

School Fees

Dikinya tendered in evidence what he had paid for his children’s fees. As indicated earlier his entitlement only stretches up to the period he got his new job  On the face of the table of his claims he paid in 2005 a total of US 6000 for this children that is, $3000 for Jesica  Heritage L6,  Tendai  Heritage  Form 3  $1000 and Runyararo  Chisipite  L6  $2000.  In the result his claim succeeds to the tune of US 6000 for school fees.

Medical Aid

It is settled that  medical aid is to the extent of what one would have expended to get medical services.  There is no evidence on the record of what Dikinya expended to obtain medical services for him and his family for the period under scrutiny. The claim to that extent falls away.

Insurance

In like manner with medical aid there is no evidence of what was expended by Dikinya hence the claim falls away.

Security Guard at residence

The claim is only to the extent of the 7 months he was entitled to but no evidence was led to that effect so the claim falls away.

Group Life assurance

Dikinya’s entitlement was also for 7 months only but similarly no evidence was led so the claim falls away.

Pension

This is determined by the rules of the particular pension  fund to which Dikinya was a member.  The claim should thus be lodged with the requisite pension fund.

Cellphone allocation

Entitlement is also only to the tune of the 7 months so he is entitled to US150 x 7 =

US 1050.

Use of company expensed car, Insurance, anti-hijack device, new vehicle tyres, new vehicle

No evidence was led on all the above listed items so there is no basis to grant any of them

Mweb accounts

Similarly No evidence was led so there is no basis to grant this claim.

Spouse’s Car

No evidence was led to justify this head so the head could not be granted.

In the ultimate the quantification of damages claim succeeds to the limited extent of the 7 months under the headings already discussed above.

IT IS ORDERED THAT

The application for quantification of damages being partially successful it be and is hereby granted.

Accordingly ZIMNAT is ordered to pay Dikinya’s estate the following

ZWL  1 502 662   -  7 months salary

ZWL 128 790   ZWL Cash in lieu of leave for 7 months

US 6000 school fees expended in 2005

Cellphone Allocation   US$ 1050

L.  Kudya   J        …………………………………

Makamure J        ………………………………… I agree

Musariri  J	     ………………………………….I agree

Chinawa Law Chambers – Applicant’s Legal Practitioners

Atherstone and Cook, Respondent’s Legal Practitioners