Julian Masanga Chinembiri v Zimbabwe Electricity Transmission and Distribution Company (ZETDC)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/10/25
HELD AT HARARE 24 SEPTEMBER 2024, 23 OCTOBER 2024
CASE NO. LC/H/799/24
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/10/25 HELD AT HARARE 24 SEPTEMBER 2024,

23 OCTOBER 2024	CASE NO. LC/H/799/24

AND 8 JANUARY 2025

IN THE MATTER BETWEEN :-

JULIAN MASANGA CHINEMBIRI	APPLICANT AND

ZIMBABWE ELECTRICITY TRANSMISSION AND

DISTRIBUTION COMPANY (ZETDC)	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Advocate B. Magogo

For Respondent	Ms. L.K. Charangwa on 24 September 2024 Mr. C. J. Mahara on 23 October 2024

MURASI J.,

On 14 March 2023, the Supreme Court set aside this Court’s judgment and made the following Order:

“1. The appeal be and is hereby allowed with costs.

The judgment of the court a quo be and is hereby set aside and substituted with the following:

The appeal be and is hereby allowed.

The decision of the Disciplinary Authority be and is hereby set aside and substituted with the following:

The employee be and hereby found not guilty of all the charges preferred against him.

The employee is hereby reinstated to his position without loss of salary and befit with effect from the date of dismissal.

In the event that the reinstatement is no longer possible the employee shall be paid damages in lieu of reinstatement to be agreed between the parties failing which either party may approach the Labour Court for quantification.”

This is therefore an application for quantification as provided in the Order.

PROCEEDINGS OF 24 SEPTEMBER 2024

At the hearing of 24 September 2024, the Court, having noticed that certain claims in the application were not quantified, brought this to the attention Applicant’s Counsel. The main reason was that paragraphs 5 and 6 of the Draft Order were not sounding in money and the nature of the submissions in respect of those heads would make the Court involved in the evidence gathering process. Both Counsel agreed that this should be attended prior to the hearing of the application. The Application was therefore removed from the roll to enable the Applicant’s Counsel to address these issues. This culminated in the filing of Supplementary Submissions by the Applicant’s Counsel on 11 October 2024 and the matter was subsequently re-set for hearing on 23 October 2024.

THE APPLICATION

Applicant’s Submissions

At the commencement of the proceedings, the Court asked Advocate Magogo whether his client was going to give evidence and he replied in the negative. He stated as follows:

“Client will not give evidence as there is nothing that requires oral evidence.”

On the merits of the application Advocate Magogo stated that when regard was had to the Notice of Opposition, the issues for determination was whether the 60 months was a reasonable period within which to obtain alternative employment, whether the salary rate was supposed to be in United States Dollars or local currency and whether the operational benefits were payable to the Applicant.

As far as the period in which Applicant was supposed to obtain alternative employment was concerned, it was submitted that Applicant had made efforts to obtain such employment and that Respondent did not contest the efforts made by the Applicant. It was further averred that it had not been suggested by the Respondent that there were positions that were available and Applicant had not taken these up. Advocate Magogo added that Applicant’s age acted against him as he was now 59 years of age and approaching 60 years which was the normal retirement age in many companies and that, but for the dismissal, he would be at the workplace. It was argued that there were criminal allegations made against the Applicant which militated against his finding alternative employment and further that allegations of corruption were levelled against him. It was suggested that these issues were still hanging over his head.

Advocate Magogo submitted that the Court was being requested to give damages in a currency that gives value as this was in line with the principle of equity. He added that it was futile to order damages in the currency that was operational at the time of dismissal as this was no longer operational. He further submitted that Respondent was currently paying its employees in United

States Dollars with a portion being paid in local currency. Advocate Magogo further averred that Respondent had not given any computation of what it considered to be the appropriate figure to be paid to the Applicant.

Advocate Magogo stated that such operational benefits as fuel, housing allowance and bonus were payable and it was incorrect for the Respondent to argue that these were not to be paid as the Applicant was not at work. It was argued that Respondent should not be allowed to benefit from its own wrong as Applicant was unlawfully dismissed. It was further argued that Applicant was entitled to be compensated for the motor vehicle in terms of the Respondent’s Motor Vehicle Policy. He added that the different heads were clearly articulated in the Applicant’s Founding Affidavit.

Respondent’s Submissions

In response, Mr. Mahara stated that the period Applicant ought to have secured alternative employment should be calculated from the date of dismissal which April 2020 and that a perusal of the record showed that Applicant had made his first attempt to do so in October 2020 and that a few attempts were thereafter made in July 2021 and May 2022 and after his reinstatement. He further stated that there was no evidence that Applicant had attempted to engage in other income generating activities such as consultancy work which showed that Applicant had failed to discharge the onus.

Mr. Mahara further submitted that the allegations of corruption being levelled against him had not been substantiated as such reports had not been availed to the Court and thus this remained an issue for speculation.

Mr. Mahara further submitted that salaries and benefits should be calculated from the date of dismissal and that a court could only depart from this principle where valid and reasonable grounds existed. Asked by the Court how Respondent was currently paying its employees, Mr. Mahara stated that Respondent was paying 35% in United States Dollars and 65% in local currency. He argued that Applicant should be paid in local currency. Further asked by the Court that Respondent had not tendered any figures in replication, Mr. Mahara responded by saying that the Court was permitted to call for viva voce evidence in the circumstances. As far as the bonus claim was concerned, he argued that this was performance-related and that Applicant was therefore not eligible for receipt of such claim. He further argued that some of the befits were operational and required that Applicant be at work to receive such benefits and these therefore could not be paid to the Applicant.

Mr. Mahara further submitted that the reason why the Supreme Court overturned the decision of the Court a quo was that ZESA Holdings was not Applicant’s employer and Applicant was now using those benefits from the holding company to claim damages which was improper in the circumstances.

ANALYSIS

The law on the application for quantification of damages has been settled in many cases both before this Court and the Supreme Court. In Farm Community Trust v Claudious Chemhere SC 22/13, it was held as follows:

“Damages are meant to place the employee in the position he would have occupied had the contract of employment not been terminated, subject to the duty upon him to mitigate his loss.”

In Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S), it was also held as follows:

“The obvious remedy for unjustified, unfair, involuntary termination is re-employment if the employee so wishes and otherwise compensation. The first remedy is not available ay common law, the essentiality and reciprocal nature of contractual obligation means that it is impossible to force unwilling party to remain bound to a contract against his will.”

Most of the issues in this matter are common cause. The first issue to determine is whether Applicant has shown that he mitigated his loss pursuant to his dismissal from employment. Applicant has attached information that he attempted to find alternative employment after dismissal. He was unable to secure any. It is also correct that these applications are quite spaced and the indication is that Applicant was aiming at positions at the high end of the employment ladder. This cannot easily be explained by the fact that Applicant occupied the position Managing Director with Respondent and must have believed that he should maintain such status quo. That cannot be a reason for holding such opinion against the Applicant. In argument, Mr. Mahara stated that Applicant had not placed before the Court that he had mitigated his loss. Contrary to this, Applicant placed evidence before the Court that he had to dispose of two immovable properties during the period in question.

Applicant stated that allegations of impropriety and corruption levelled against had militated against him finding alternative employment. However, Applicant has not placed such evidence before the Court. In Shilling Mavumbuka Sibanda v Yambukai Holdings (Pvt) Ltd HH 84/17, the following observation was made:

“It follows therefore that where a party makes bald assertions not backed by evidence and the same are denied by the party against whom they are made, such bald allegations cannot pass as having been proved on a balance of probabilities. A party averring a fact should present evidence of that fact which has a probative value.”

I should also make the observation that Advocate Magogo declined to have his client give evidence in the proceedings and therefore this matter could not be clarified. The averments cannot, therefore, be accepted as evidence.

Applicant, in the Founding Affidavit, submitted that he could not find his contract of employment and filed a copy of Finance Director’s contract of employment. Firstly, the figures depicted in that contract of employment do not apply to Applicant even though he attempted to give certain

adjustments in the affidavit. The contract of employment submitted required further explanations. It does not meet the requirements of the best evidence rule. It should be discarded. Applicant’s predicament is however salvaged by the pay slip filed of record which showed the payments made by the Respondent in May 2024. The pay slip confirms what Applicant was being paid in terms of the contract of employment.

Applicant has submitted that the period that he should be compensated for the unlawful termination of employment is sixty (60) months. The reasons were given in submissions by Advocate Magogo. It is also correct that Respondent paid ‘back-pay’ to Applicant up to April 2023. What is the correct position of the law in this regard? In Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo SC 32/13, GOWORA JA (as she then was) had this to say:

“Back-pay cannot legally be awarded in respect of a period after the date of the order of reinstatement is granted. This principle was applied by SANDURA JA in Chiriseri & Anor v Plan International 2002 (2) ZLR 261 at 265 D-G where he stated:

‘As this court stated in Leopard Rock Hotel Co (Pvt) Ltd v Van Beek, supra, at 254H- 255A:

‘….’back-pay’ and ‘damages’ are indeed different concepts, but only in the sense that ‘damages’ is a wider concept. It will normally include back-pay, but may include, for example, compensation for loss of promotion prospects, interest, and other elements as appropriate.’

However there is no basis for awarding the appellants back-pay and benefits in respect of the period after 29 march 1995, the date on which the order of reinstatement was issued..’”

The important issue that comes from the Leopard Rock judgment is that ‘back-pay’ and ‘damages’ are interlinked. ‘Damages’ will normally include ‘back-pay’. This Court notes that Applicant has submitted claims for the whole 60 months using the current salary for the managing Director. Damages are supposed to be calculated from the date of dismissal are to compensate the employee for the period in which he is supposed to have obtained alternative employment. What the Court notes is that the submissions in the Founding Affidavit do not consider the payment made by the Respondent though reference is made to such payment in the Founding Affidavit and the heads of argument. This therefore means that the calculation of the sixty months, in terms of the law, should begin from April 2020 when the Applicant was dismissed from employment. A simple calculation would show that Applicant received ‘back-pay’ equivalent to a period of forty-eight (48) months. This therefore means that from the application, the remaining period to be compensated is twelve

(12) months.

As pointed above, Applicant did not take the payment made by the Respondent in respect of the ‘back-pay’. Applicant has not suggested that the quantum of the ‘back-pay’ was inadequate inn the circumstances. It is therefore my considered that Applicant is entitled to receive compensation as damages for the remain period of twelve from the claim.

I now turn to the currency to be used in quantifying the claim. It is common that the currency in which Applicant was being remunerated before his dismissal is no longer in use and has been replaced by another. It is also common that Respondent has confirmed the current salary being paid to the Managing Director in a letter addressed to the Applicant’s legal practitioner. It is also common cause and conceded by Mr. Mahara in submissions that Respondent currently pays its employees 35% in United States Dollars and the balance in local currency. It is my view that it will be equitable to award compensation in line with the current pay regime used by the Respondent.

The issue of the individual claims should not detain the Court. As stated elsewhere in the judgment, the pay slip submitted by Applicant shows the payments acknowledged by the Respondent. However, what comes out clearly from that pay slip is that such claims as ‘Death Levy’, ZESA Staff Special Fund’ and Long Service Award are not “earnings”. What can only qualify for compensation would be the Long Service award as there would be no other platform where such claim may be made where the employment has been terminated. However, the other claims can only be made to the respective funds who are in a position to ascertain what contributions were made by the Applicant to those funds. The two are therefore declined.

The following is appropriate:

The Court, therefore, will award compensation under the following heads:

Basic Salary at US 6192-44 for 12 months- US 74 309-28

Retention Allowance 25% of basic salary- US 18 577-32

Responsibility Allowance, 25% of basic salary-US 18 577-32

Representation Allowance, 20% of basic salary- US 14 861-88

Housing Allowance, 30% of basic salary-US 22 292-76

Cafeteria Allowance, 40% of basic salary-US 29 723-76

Annual bonus (one month’s basic salary per annum)-US 6192-44

Fuel- 500 litres per month- 6 000 litres.

Electricity benefit- 1650 kWh per month- 19 800kWh

Holiday grant, 20% pf annual gross salary-US 14 861-85

Long Service Award- 30 years of service 150% of basic salary-US 9288-66

Motor vehicle benefit as claimed in Supplementary Submissions- US 24 533-33.

The above amounts are to be paid in terms of Respondent’s policy of 35% in United States Dollars and 65% in local currency after the respective statutory deductions.

Respondent to meet Applicant’s costs on the ordinary scale.

Maposa Mahlangu Attorneys-	Applicant’s legal practitioners Muvingi & Mugadza Legal Practitioners-	Respondent’s legal practitioners.