Musekiwa Kazembe v Allied Timbers Zimbabwe (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE
JUDGMENT NO. LC/H/53/23
CASE NO. LC/H/757/22
11 January 2023
And 17 February 2023
IN THE MATTER BETWEEN:
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IN THE LABOUR COURT OF JUDGMENT NO.

ZIMBABWE HELD AT HARARE LC/H/53/23 CASE NO.

11 January 2023 LC/H/757/22

And 17 February 2023

IN THE MATTER BETWEEN:

Musekiwa Kazembe Applicant
Allied Timbers Zimbabwe (Pvt) Respondent
Ltd

Before Honourable Mr. Justice L.M. Murasi

For Applicant Mr. T. J. Mafongoya
With Ms R.P.V. Sibanda

For Respondent Mr. E. T. Moyo

MURASI J:

This is an application for quantification of damages in lieu of reinstatement. The background of the matter is as follows.

Applicant was employed by the Respondent as Human Resources Director. He was dismissed after allegations of misconduct had been levelled against him. The matter landed in this Court and was handled by MAKAMURE J who ordered Applicant’s reinstatement. An appeal was noted with the Supreme Court. However this was withdrawn. However Respondent declined to reinstate the Applicant and purported to terminated Applicant’s contract ‘on notice’. This prompted the Applicant to approach the Labour Officer. This resulted in a draft ruling which was confirmed by this Court in a decision handed down on 25 February 2022. The Order issued by this Court provided, inter alia, for the payment of back-pay up to August 2020 and other benefits which were due to the Applicant. Above all, the Court ordered Applicant’s reinstatement. Respondent declined to reinstate the Applicant. This has prompted the Applicant to approach this Court for quantification of damages in lieu of such reinstatement.


After reading the documents filed of record and hearing submissions by the parties it is my view that there are two issues for determination by this Court. The first is the period which Applicant is entitled to be awarded damages in lieu of reinstatement. The second is the actual figure which the Applicant is supposed to be paid.


As regards the first issue, Mr. Mafongoya submitted that Applicant was entitled to a period of thirty six months having regard to the economic situation prevailing in the country. He further submitted that although Applicant was employed from October 2021, the salary which he received was less than what he was earning when was employed by the Respondent. I should add that Mr. Moyo, in his submissions stated that Applicant had not been candid with the Court in the last proceedings as he should have informed the Court that he had found alternative employment. Indeed, had the Applicant informed the Court that he had found alternative employment, the Court would not have ordered reinstatement as it then was not a competent order. Indeed Courts have time and again reiterated that litigants have to take the court into their confidence and where a litigant misleads the court, s/he is not entitled to the protection of the court and may indeed lose any entitlement that may be due to him or her.

I am of the view that the law is clear as to what period operates where an employee finds alternative employment. The period in which damages may be awarded may not go beyond the date the employee finds that alternative employment. It is understood in law that the employee would have severed ties with his/her former employer as at that date. The employee would have accepted to have ‘moved on’ as is said in common language. A claim for damages beyond that date would be akin to claiming maintenance from a former spouse whilst in a new matrimonial relationship!! It is my view that Respondent’s Counsel was correct in stating that Applicant was entitled to damages in lieu of reinstatement up to the date he found alternative employment. Even if the Applicant had provided details of how much he earned with the new employer, he would still be disentitled to any relief beyond the date he found alternative employment.

The issue of the quantum available to the Applicant should not detain the Court. After engagements with the Court and a perusal of the documents, Mr. Moyo made the concession that Applicant was entitled to the motor vehicle as one of the benefits. A perusal of the documents referred to by Mr. Mafongoya especially page 122 which is Annexure ‘H’ has a salary of RTGS 52 000-00. This figure differs from that given by the Respondent which is above the one claimed by the Applicant. Paragraph 8.1 of Respondent’s opposing affidavit takes care of those figures. Resultantly, Applicant’s figures are below the actual salaries he was supposed to earn as given by the Respondent. Respondent has backed these figures with evidence. I have no hesitation in accepting them and in the interests of justice, it would not be fair to award what Applicant has claimed when he is entitled to more. The figures given by the Respondent show that the education allowance and the housing allowance was included in the package. Further, statutory deductions were taken care of in those calculations. The figure in respect of salaries would come to $1 182 651-18.

This brings me to the fuel allowance. Applicant was entitled to 300 litres per month when one has regard to the documents availed as evidence. The period is 13 months, meaning that Applicant would be entitled to 3900 litres as fuel allowance.


Applicant’s contract of employment did not entitle him to the payment of a bonus. This head cannot succeed.

Applicant has not established the basis upon which the benefits under holiday and travel, medical aid and club membership should be paid. It is understood that these payments should be paid to the providers of the service and not to the Applicant. Applicant has not produced any documents showing such entitlement.

Applicant would be entitled to cash in lieu of leave days accrued. The total number of days is 32.5 days and according to Respondent’s calculations using the correct salary scale, this would amount to $ 125 669-70.

I have already alluded to the fact that Applicant would be entitled to the motor vehicle in question.

In the result, the Court makes the following Order:

1. The application for quantification of damages in lieu of reinstatement succeeds.
2. Respondent shall pay to the Applicant the following as damages in lieu of reinstatement:
   a. Salaries up to September 2021 in the sum of $1 182 651-18.
   b. Cash *in lieu* of leave days in the sum of $125 669-70.
   c. Fuel amounting to 3900 litres or its cash equivalent at the prevailing interbank rate on the date of payment.
   d. Delivery to Applicant of the motor vehicle allocated to the Applicant.
3. The said payments shall be made with effect from 30 days from the date of this Order.
4. Each party to meet its own costs.

*Mafongoya & Matapura Law Practice-*

*Scanlen & Holderness-*

Applicant’s legal practitioners

Respondent’s legal practitioners


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