Jabulani Charles Kuchena v The Scientific & Industrial Research Development Centre

### Preamble
JUDGMENT NO.
IN THE LABOUR COURT OF ZIMBABWE
LC/H/224/24
CASE NO.
LC/H/APP/623/16
HARARE, 11 JANUARY, 2024 AND
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==============================

JABULANI CHARLES KUCHENA
And
THE SCIENTIFIC & INDUSTRIAL RESEARCH DEVELOPMENT CENTRE

Before the Honourable Kachambwa J, Judge;

For the Applicant: K. Gama (Legal Practitioner)
For the Respondent: O. Kondongwe (Legal Practitioner)

KACHAMBWA, J:

The Application

1. This is an application for backpay. This hearing is arising from a Supreme Court decision that referred the matter back for determination on the ground that the court as an equity court should not apply strict rules of evidence but should call expert evidence to assist in determining the backpay that should be paid. Previously the court had dismissed the claim as the applicant could not bring evidence to show how his backpay should be determined in view of the changes that the Zimbabwe currency had gone through during the relevant period.


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History of the Case

2. The case goes back to 2005 when the applicant was dismissed from employment. He challenged the dismissal and in 2008 this court ordered that he be reinstated without loss of salary and benefits or that he be paid damages in lieu of reinstatement. The respondent elected to re-employ him but unfortunately the applicant did not resume duty as the parties huggled over some issues. This huggling went on until the applicant died on the 22nd April 2021. Thus he died still under the decision to reinstate and when he had offered his services. John Kuchena the Executor Dative for his estate replaced him in the proceedings.

Agreed Statement of Facts

3. At the first hearing after the replacement of the deceased applicant, the court directed the parties to compile a statement of agreed facts and also list the outstanding issues. This was to be done with the assistants of their expert witnesses. This was done in order to curtail argument in view of the fact that the matter was too long outstanding and further, that the parties were in agreement that the applicant had to be paid something whatever the case.

The Statement of Agreed Facts and Outstanding Issues

4. The parties agreed as follows:-


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 “Agreed Issues
1. The Respondent is liable to Applicant for damages.

2. The findings and evidence of both experts relating to conversion of damages to United States Dollars are accepted by both parties and the court is to rely on either the Applicant or Respondent’s expert findings or the average of the two experts’ findings.

3. Damages to be denominated in United States dollars and paid in Zimbabwean dollars at the prevailing interbank rate on the date of payment.

4. The Respondent’s supplementary Affidavit of 15 December 2023 to be admitted as evidence and to be part of the record.

5. Both parties’ experts’ reports to be admitted as evidence.

Issues in contention

1. Whether the applicant is entitled to damages for a period of sixteen years or some other period”.

5. According to the parties there were two areas needing the court’s decision.
   These are the conversion of damages to United States dollars and the period the Applicant is entitled to the damages. The position on the conversion to Unites States dollars shows the difficulty that the parties faced and the counsels’ wish that the matter comes to a chose. However there would be ancillary decisions.

The Period of “Damages”

6. The Respondent argued the principles of looking for alternative employment and therefore limiting the period for payment of damages. On the other hand
 3 the Applicant has differentiated the present scenario by saying that the Applicant was infact an employee who had been reinstated and therefore the principles of alternative employment do not apply. As for whether it was a new fixed term contract or not the Applicant’s position was that it was without limit of time.

7. The Respondent’s position is not correct. The Respondent was given the option to reinstate or not. It opted to reinstate. So the position is clear that after reinstating one pays all the back-pay and benefits and then continues to pay salary and benefits going forward.

8. A question was raised that since the applicant was on fixed term contract what is the nature of the new contract?. The court accepts the Respondent’s exposition that it is a new contract and that in the absence of any mention by the employer as to whether it is fixed term or not it is a contract in perpetuity. That is in line with the literature by book writers, precedent and the Labour Act [Chapter 28:01] sections 12(1) and 12(3). Subsection 1 recognises an unwritten contract while subsection (3) says that if the duration is not mentioned and the contract is not for casual or seasonal work then it is a contract without limit of time. Therefore the Applicant was employed till his passing away on the 22nd April 2012. John Grogan – Workplace Law 13th edition, page 45, says that:

“If after the agreed date for the termination of the contract the employee remains in service and the employer continues to pay the agreed remuneration, the contract is deemed to have been tacitly renewed, provided that an intention to renew is consistent with the parties’ conduct. The relocated contract will continue on exactly the same terms and conditions as the previous fixed-term contract, except that the duration of the contract need not be the same as that of the original contract; the life of the relocated contract must be determined in light of the particular circumstances of each case. However, unless a contrary intention can be inferred from the facts, it will generally be assumed that the parties intended the new contract to be of indefinite duration, terminable by reasonable notice given by either party” (my underlining).

9. The position postulated by Grogan resonates with the Labour Act provisions. Thus it is accepted without hesitation that the Applicant was under employment till his demise.

The Conversion of The Claim to United States Dollars

10. This issue is made easier by the parties’ election that whichever way the court takes they will go by that. They accept the evidence of the experts despite it not being on all fours with each other. They then left it to the court. This is understandable owing to the technical nature of the issue. The experts were not called to give evidence *viva voce*. Their Affidavits were not scrutinized as such. Everything was left to the court. This approach kind of short changed everyone. The experts should at least have been asked to comment on each other’s approach.

11. Be that as it may, the applicant’s witness gave his credentials as a holder of-

Bachelor of Science Degree UZ 1985
Diploma in Acturial Technique 1998
Certificate in Financial Investment 2002

His name is Martin Taruvinga. He also indicated that he has previously given similar evidence in this court before a panel of three Judges in the case **Machaya v CFI Holdings Ltd** LC/H/554/14. That evidence was accepted by the court. He went on to describe an elaborate method that he uses to determine how to evaluate “lost”
 earnings caused by the inflation that this country is going through. Through this method he calculated benefits under six tiles as follows:-

| Tile | Amount |
|------|--------|
| 11.1  | 2021   |
|      | 915 602-00 |
| 11.2  | Cash in lieu of leave |
|      | 45 175-00 |
|      | 73 868-00 |
| 11.3  | Annual bonus |
|      | - 00    |
| 11.4  | Medical Aid |
|      | - 21 608-00 |
| 11.5  | Use of car benefit |
|      | - 64 680-00 |
| 11.6  | Acquisition of car benefit |
|      | - 9 368-00 |
| 11.7  | Interest at 5% |

The applicant has consequently claimed these amounts.

12. On the other hand the expert for the Respondent identified himself as Tawanda Josephat Chituku, a qualified actuary. That is all. There is no previous experience mentioned. He also mentioned that an elaborate method is used to make the calculations. He looked at a couple of things and came up with a figure for annual salary and bonus of $225 738-00. The Respondent accordingly offered this figure.

13. From the foregoing and from precedent we can see that we are not only faced with the issue of values but the issue of what should constitute the claims. Certainly it is not just salary and bonus. One actually wonders whether the Respondent was serious in making that offer without considering all the other benefits. For this reason the offer is definitely misplaced.

14. On the items listed by the Applicant’s expert medical aid is a benefit that is meant to cover the actual medical costs. It is not paid out without incurring such costs. There was therefore need to prove such costs and this was possible if the Applicant had applied his mind.
 to it. For this reason we cannot award the figure as claimed. The other benefits are in order. The interest is also in order.


It is the court’s view that the applicant’s claim as qualified less the medical claim in awardable. It is a claim that is well thought out and clearly elaborated.

15. The parties argued on the issue of mitigation of loss. This would apply for the period 2005-2008 when the applicant was not yet reinstated. However it is observed that during his employment the applicant was allowed to do consultancy. That is what he did during that period. It would not be proper to deduct those earnings as mitigation.

Disposition

16. In the result the applicant is awarded his claim less the medical aid portion. The claim is awarded as follows:

| Date       | Claim Amount |
|------------|---------------|
| Salary 1   | March 2005 - 22nd April |
| 16.1.2021  | - 915 602-00    |
| 16.2. Cash in lieu of leave | - 45 175-00 |
| 16.3. Annual bonus | - 73 868-00 |
| 16.4. Use of car benefit | - 64 680-00 |
| 16.5. Acquisition of car benefit | - 9 368-00 |
| 16.6. Interest at 5%. | -               |


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CASE NO.
LC/H/APP/623/16
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