Little Cadets Nursery School v Agnes Ganyiwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/460/2014
HARARE, 10 JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/460/2014

HARARE, 10 JULY 2014 &				    CASE NO LC/H/02/2014

18 JULY 2014

In the matter between:

LITTLE CADETS NURSERY SCHOOL					APPELLANT

Versus

AGNES GANYIWA								RESPONDENT

Before The Honourable P Muzofa		:	Judge

For Appellant		A M Makoni	(Legal Practitioner)

For the Respondent	J Mufukiza  (Trade Unionist)

MUZOFA J:

This is an appeal against the quantum of damages made by an arbitrator on 10 December 2013. The arbitrator made the following award:

Salary arrears				$2 966-40

Back pay					$   464-00

Terminal Benefits				$   129-00

Total						$3 559-40

The appellant’s main ground of appeal is that the respondent was not entitled to salary arrears in the sum of $2 966-40. This was salaries for nine months. The background to this amount is that the respondent was dismissed on 12 January 2012. After her dismissal the matter was referred for conciliation and subsequently the parties appeared before an arbitrator. The arbitrator having made a finding that the respondent was properly dismissed made an order in the following terms:

That the dismissal of the employee be and is hereby confirmed.

That the employee be paid salary arrears from date of dismissal to date of this award.

That any outstanding salary arrears be paid.

One of the grounds of appeal set out by the appellant in its notice of appeal reads as follows:

“By quantifying and awarding salary arrears in the amount of USD 2 966-40 in relation to a nine month period after the effective date of dismissal of the employee when the arrears due to the employee in terms of the law were for a period of 12 days.”

The ground of appeal is raising an issue with the interpretation given to the first award of 5 December 2012 the second paragraph thereof. Quantification of damages is usually guided by the initial award ordering payment of damages. Precedent has shown that the court or tribunal faced with a case of quantification of damages looks to the preceding award for guidance as to what else can be included in the damages. For instance where an order for reinstatement is made retrospectively the damages awarded must include back pay and benefits see Chiriseri & Anor v Plan International 2002 (2) ZLR 261 (SC).

In my view the first award of 5 December 2012 is clear. The respondent was to be paid salary arrears from the date of dismissal to date of the award. The appellant did not appeal against the arbitrator’s award. Technically this would mean appellant accepted the award as granted.

The appellant argued that the arbitrator having confirmed the dismissal of the respondent she erred in awarding salary arrears of nine months. The respondent was only entitled to twelve days’ salary arrears being the number of days she had worked and was not paid. The respondent did not work for the period of nine months awarded to her. As indicated this court is not ceased with the appeal against the award of 5 December 2012 but with the quantification made in December 2013. In any event the arbitrator made a finding that there were gross irregularities in the dismissal of the respondent bearing in mind that labour matters should not be decided on technicalities see Dalny Mine v Muza Banda SC-39-99. The arbitrator made a finding that on the merits the respondent was liable and therefore confirmed her dismissal as on the date of the award and not on the date of dismissal being 12 January 2012. Accordingly the order of salary arrears was made. The quantification of damages as per the nine months is correct. It was for the appellant to challenge the initial award but that was not done. There is no merit in the ground of appeal and it should be dismissed. The appellant did not challenge the amount for back pay and terminal benefits.

Having made the finding on salary arrears I accordingly order as follows:

The appeal be and is hereby dismissed with costs.

Makoni Legal Practice, appellant’s legal practitioners