George Dikinya v Zimnat Life Assurance Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/784/2016
HARARE, 18 JANUARY 2012, 21 MARCH 2012,
25 MAY 2012, 14 MAY 2015, 9 FEBRUARY 2016
CASE NO LC/H/629/2005
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/784/2016

HARARE, 18 JANUARY 2012, 21 MARCH 2012,	         CASE NO LC/H/629/2005

25 MAY 2012, 14 MAY 2015, 9 FEBRUARY 2016

& 9 DECEMBER 2016

In the matter between

GEORGE DIKINYA							      APPLICANT

Versus

ZIMNAT LIFE ASSURANCE COMPANY				   RESPONDENT

(PVT) LTD

Before the Honourable Makamure J

For the Applicant	Advocate Mpofu (Legal Practitioner)

For the Respondent     Mr I Chagonda  (Legal Practitioner)

MAKAMURE J:

This is an application for quantification of damages pursuant to an order by the Supreme Court in the case of Zimnat Life Assurance Limited v George Dikinya SC 30-10 whose paragraph 1 reads as follows:

“1.	The order of the court a quo is amended to read:

‘The appellant is to be reinstated to his former position as managing director of ZIMNAT with no loss of salary or other benefits and in the event that reinstatement is no longer possible the appellant is to be paid such damages as may be agreed between the parties or that failing, as may be determined upon application by this Court’”.

Following the order for his reinstatement the respondent did not reinstate him, neither did it make an offer towards damages in lieu of such reinstatement.

The applicant was employed by the respondent as its managing director. He was unlawfully dismissed in June 2004. After such dismissal he sought alternative employment. Evidence was led by the applicant showing that he made efforts to secure alternative employment as will be shown below.

On 1 November 2005, he was offered a job by Apollo Insurance (Apollo) based in Kenya as its Technical Expect. The respondent got to know of this and advised the Commissioner of Insurance (the Commissioner) that there were certain issues that they needed to clear with him (the applicant). The Commissioner then proceeded to write the applicant as follows:

“I have received communication from Zimnat Life Assurance Company Limited of Zimbabwe to the effect that you did not clear with them certain issues after your disengagement with them.

It is important that you do so immediately and let us have a letter of clearance within one month of the date of this letter failing which I shall have no alternative but to require you to relinquish your position with Apollo Insurance Company Limited.

Please be guided accordingly.”

The above letter was copied to the Chairman of Apollo. Soon thereafter the applicant lost his job with Apollo. The applicant gave an elaborate explanation of all his efforts to secure alternative employment. The record bears testimony to this. His various efforts were interfered with by the respondent. From his narration of events, the respondent, as his last employer, always had the last and damaging say. He got another job offer in Nigeria. As with the previous offer, the moment that the respondent contacted his prospective employer, any job promised or secured would be lost. This is what happened with the job offer from Nigeria. During the course of the hearing the respondent was subjected to a lengthy and searching cross examination but he withstood it all. He was forthright in all his answers. What came out from the evidence is that, the respondent’s conduct made the applicant unemployable.

It should be noted that the applicant was employed by the respondent on the basis of a written contract which spelt out his salary. The damages which are due him therefore are based on the terms and conditions which are common knowledge between the parties.

The law on damages in lieu of reinstatement is settled. In Kuda Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine 2002 (2) ZLR 269 (S) the Supreme Court stated that:

“As far as back pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect. In my view both of them are entitled to back pay and benefits. The only difference between them is that one gets his job back whilst the other is paid damages for the premature termination of his employment contract.”

In the present case, the applicant prematurely lost his employment. Further the respondent interfered with his prospects of future employment. He thus lost both back pay and future earnings. It is appropriate that he be sufficiently compensated.

In terms of the Supreme Court order the applicant is entitled to his position as managing director “with no loss of salary or other benefits”.

It is instructive to observe that prior to his unlawful dismissal the respondent was impressed with the applicant’s performance. On various occasions he received commendations. In fact he rose through the ranks to the post of managing director as a result of his good performance with the respondent. He thus earned his post.

An employee is entitled to back pay and damages. In the present case the back pay would be from the time of the unlawful dismissal to the time that reinstatement was ordered. The rationale is simply that but for the premature dismissal he would still be in employment. He was dismissed in June 2004. The order for reinstatement was made on July 27, 2007. This means that he is entitled to his back pay for that period. It is common cause that during the period in question the Zimbabwe Dollar was still in use. The country has since February 2009, not been using the Zimbabwe Dollar but adopted the multicurrency system. However the fact that the Zimbabwe Dollar is no longer in use does not extinguish the respondent’s liability towards the applicant in back pay. Indeed this was settled by the Supreme Court in the case of Madhatter Mining Company v Marvellous Tapfuma SC 51/2014 where the Supreme Court at page 17 of its cyclostyled judgment stated as follows:

“The principles of equity and social justice as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, all are called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages being owed to the employee, can no longer be paid in Zimbabwe currency realistically or in a way that gives due value to the employee. The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency. Equity would demand that a formula be found to give effect to the employee’s entitlement to payment of, and the employer’s obligation to pay, the debt in question.”

Regrettably after the respondent had made the applicant unemployable, it refused to reinstate him and now its attitude is simply to dismiss his claim. The order of the Supreme Court is so clear and yet the respondent appears bent on disregarding that order.

The applicant having been made unemployable, can only be compensated by the respondent. He is now fifty four (54) years old. According to the record and evidence placed before the court, had his employment not been prematurely terminated, he was due to retire at the age of 65. His employment was terminated when he still had more than fourteen (14) years of employment to go. I believe that equity would demand the respondent to pay for the balance of his expected working life. It would appear that all efforts by the applicant to secure employment which came to the attention of the respondent were scuttled by the respondent.

The respondent, in addition to the unfortunate and destructive attitude that it exhibited towards to the applicant, argues that the applicant sufficiently mitigated his damages when he joined Apollo and that thereafter there was no employer/employee relationship between the parties.

While the applicant may have secured employment, it is always the respondent who frustrated his efforts. The applicant’s term of employment with Appollo was short lived due to the respondent’s relentless efforts to ensure that he would lose employment. The submission that the applicant cannot be compensated by the respondent under the circumstances of this case is therefore not sustainable.

As indicated earlier on, the applicant gave evidence in support of his claim. The amounts due were presented before the Court. The figures, when considered particularly under the current harsh economic climate, appear unrealistic. The figures were not imagined. They were based on his entitlement.

In the result the applicant has made his case and an order is accordingly granted in terms of the calculations presented before the court. The entitlements were calculated using the exchange rates found by the applicant on the Reserve Bank of Zimbabwe (RBZ) Official Website. These are as follows:

Salary Arrears June 2004 to July 2007	-	USD 548 654-30

Total annual bonuses for period 2004 to	-	USD 198 153-20

2007

Cash in Lieu of Leave			-	USD  150 902-70

Grand Total (Salary Bonus & Leave)	-	USD  897 710-20

Benefits

Share Allocation				-	USD 600-000-00

School Fees					-	USD   18 500-00

Medical Aid/Insurance Cover		-	USD   18 220-00

Security Guard at Residence			-	USD     1 100-00

Group Life Assurance Cover			-	USD   46 250-00

Cellphone Allowance			-	USD     5 550-00

Use of Company Car - Fuel & Repairs 	-	USD   40 975-00

Car Insurance ML 320			-	USD     7 708-00

Vehicle Anti-Hijack Device			-	USD     1 480-00

New Vehicle as per Contract			-	USD 202 676-10

M Web Account					USD	    925-00

Total							           _________

Less Bonus					-           USD    198 153-20

Grade Total						USD 2 000 651-30

Included in the claim was a car for the spouse which was to be sold to him at book value. The value of the car was not included. It would have been subtracted from the total amount due to him from the respondent. The only item which appears to be not proved is the item for bonus. Bonus is granted at the discretion of the employer. That item will therefore be subtracted from the total due to the applicant.

Accordingly it is ordered that the respondent awards the applicant damages in lieu of reinstatement in the sum of two million six hundred and fifty one United States dollars and thirty cents (USD2 000 651-30).

Kantor & Immerman, applicant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners