Ivy Muzorewa v Golden Horse Trading Company t/a Foodking Supermarket

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/464/2016
HARARE, 16 JUNE 2016 &
CASE NO LC/H/APP/1196/15
5 AUGUST 2016
---------


IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/464/2016

HARARE, 16 JUNE 2016 &				  CASE NO LC/H/APP/1196/15

5 AUGUST 2016

In the matter between:

IVY MUZOREWA								APPLICANT

Versus

GOLDEN HORSE TRADING COMPANY				RESPONDENT

t/a FOODKING SUPERMARKET

Before the Honourable Maxwell J

For the Applicant	S Banda (Legal Practitioner)

For the Respondent	Ms S Mudarikwa (Legal Practitioner)

MAXWELL J:

This is an application for quantification of back pay and damages in lieu of reinstatement. On 17 June 2015 this court allowed an appeal by the applicant in default of the respondent’s appearance. The court ordered the respondent to reinstate the applicant to her original position without loss of salary and benefits with effect from the date of unlawful dismissal. In the event that reinstatement was no longer tenable the respondent was to pay damages in lieu of reinstatement the quantum of which was to be agreed upon by the parties failing which either party could approach the court for quantification.

The applicant sought reinstatement in vain. On 5 October 2015 the applicant filed the present application claiming a total of $10 412-00 and costs of suit. On 7 October 2015 Mr Gong, the Director of the respondent received and signed for Form LC2, the Notice by the Registrar to the respondent. No response to the quantification was filed. On the date of the hearing counsel appeared for the respondent. No good cause was shown for the default in compliance with Rule 22 of S I 59/06. Consequently the court proceeded in terms of Rule 22 (b)(ii) to determine the matter on the merits.

The principles governing the payment of damages are well settled in our law. An employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his contract of employment. She may also be compensated for the loss of any benefit to which she was contractually entitled and of which she was deprived in consequence of the breach. See Charles Ambali v Bata Shoe Company Limited 1999 (1) ZLR 417 (S). It is clear from the wording of the Labour Court order that retrospectivity was intended. The applicant is therefore entitled to back pay and benefits from the date of unlawful dismissal, i.e 31 October 2012 to the date of this court’s order of reinstatement, i.e. 17 June 2015. See Oliver Chiriseri & Another v Plan International SC 56-02. The period in question amounts to thirty-two (32) months. The applicant has submitted payslips showing that she was earning $274-00 per month. The total amount of back pay is therefore 32 x $274-00 = $8 768-00.

It is trite that an employee who is wrongfully dismissed must mitigate her damages. As stated in Posts & Telecommunications Corporation v P G Swabata SC 42-03:

“In other words, evidence of what the employee did after he was dismissed from employment by way of looking for alternative employment has a direct bearing, not only on the extent of the damages to be awarded, but also whether he is entitled to any damages at all.”

The applicant adduced evidence to show that she started sourcing for alternative employment in 2014. There is no evidence of what she did from the date of dismissal in 2012 to 2014 when she started to look for alternative employment. In the PTC v P G Swabata case (supra), it was stated that where there is evidence that the employee did not look for alternative employment, the damages would be calculated from the date of wrongful dismissal to the date she would reasonably have been expected to find alternative employment.

The application letters the applicant attached to the application state that she was aged 34 years in 2014. She is a holder of a GCE “O” level certificate with nine subjects, a certificate in tourism and business studies and a certificate in merchandising. At one time she applied for a vacancy to train as a primary school teacher, at another as a general nurse. She also sought a position as a merchandiser. She states that she worked for four years in the retail sector as a supervisor. Clearly this is someone who is looking for an opportunity in any sector. She has no special qualifications. In Hampton Fokoseni v Lobels Bakery SC 20-04 it was stated that prospects of securing employment differ from one person to the other, being influenced by such considerations as the prevailing economic climate, the skills (if any) of the person concerned, experience, age and so on. In Kuda Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine SC 63-02,  it was stated that the burden of showing that the appellant earned or ought to have earned some money during the relevant period rested on the respondent. As the respondent has not opposed the application for quantification the onus of showing that the applicant earned or should have earned some money, and how much she earned or should have earned during the relevant period was not discharged. The applicant is claiming six (6) months as the period she reasonably believes she could have been expected to secure alternative employment. The applicant’s counsel submitted that the period claimed is reasonable. I have no reason to disagree. Consequently I award her the six months and the damages will be 6 x $274-00 = $1 644-00.

The total claim to the tune of $10 412-00 is therefore awarded.

Accordingly the following order is appropriate.

The application for quantification be and is hereby granted with costs.

The respondent be and is hereby ordered to pay the applicant $10 412-00 being back pay and damages in lieu of reinstatement.

J Mambara & Partners, applicant’s legal practitioners

Nyangani Law Chambers, respondent’s legal practitioners