Nickson Busu v Fidelity Life Assurance of Zimbabwe Limited and Fidelity Funeral Assurance Company (Pvt) Limited

### Preamble
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/282/25
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 4TH JUNE 2025

AND 31 JULY 2025

In the matter between

NICKSON BUSU

And

FIDELITY LIFE ASSURANCE OF ZIMBABWE LIMITED

And

FIDELITY FUNERAL ASSURANCE COMPANY (PVT) LIMITED

JUDGMENT NO LC/H/282/25

CASE NO LC/H/1052/22

APPLICANT

1ST RESPONDENT

2ND RESPONDENT

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPLICANT : C. MUCHECHE

FOR BOTH RESPONDENTS : O. KONDONGWE

MAKAMURE J:

This is an application for quantification of damages following an order of the Supreme Court SC597/24. Paragraph 4 of that order reads:

‘4.In hearing the matter de novo , the court shall consider the papers already filed and any further evidence that the parties may adduce in accordance with the Labour Act Cap 28:01and the Labour Court Rules…’

The applicant is claiming a total of two hundred and ninety-four thousand three hundred and ninety -six United States dollars and eighty -five cents(US$294 396.85). He is basing this

calculation on a monthly salary of $1192.00 per month which is reflected on his payslip dated 25 April 2013.( The

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payslip reflects a gross salary of ‘2399.00’ and ‘1192.00’ deductions and a net salary of ‘1207.07’, however the Court will be guided by the figure 1192.00)The respondents on the other hand are offering damages for a period of six months.

It is common cause that the applicant was dismissed from the respondent’s employ in July 2013. Following a succeful application for review with this Court the dismissal was set aside and his reinstatement with an alternative for damages was ordered in July 2022.This was more eight (8)years after dismissal. The matter was taken on appeal and the above- mentioned is part of the last order from the Supreme Court requiring this Court to quantify the appropriate damages.

The applicant in his founding affidavit is claiming back pay from the date of dismissal to the date of reinstatement. He also claims fuel allowance , school fees benefit and annual bonus for the eight years. I must hasten to say that annual bonus was performance based . Further bonus is generally awarded at the discretion of the employer. In the applicant’s circumstances the employer would not have been able to assess his performance since he was out of employment. On the school fees this would have been based on the performance of the respondents thus it is a claim I doubt would succeed.

Parties filed written submissions. The position advanced on behalf of the applicant was that the applicant looked for but failed to secure alternative employment. It was submitted that the applicant was entitled to such salary and backpay. It was submitted that the failure by an employee to secure alternative employment should not negate his or her entitlement to damages as long as the employee made genuine and reasonable efforts to find employment. The authority of Zimbabwe United Passengers Company v Daison SC 87/02 was used to support this submission.

It was further submitted for and on behalf of the applicant that due to health conditions and old age the applicant’s efforts to secure employment did not yield any fruit. It was submitted that at the age of sixty it was not easy for the applicant to find employment given the economic situation in Zimbabwe. However, it was not clear as to what ailments afflicted him and therefore compromising his efforts to look for employment.

It was also argued that it was the duty of the employer to prove that the employee failed to mitigate his damages and not the duty of the employee to prove the negative. It was submitted that if the employer fails to prove that the employee did not make reasonable efforts to secure employment, the employee cannot be penalized for his or her failure to mitigate their damages. The case of Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (SC) was cited in support of this submission. It was submitted further that damages for unlawful termination of employment should put an employee in a position that they would have been but for the breach.

It was under the circumstances submitted that the applicant had established that it is equitable for him to be awarded the amount of damages that he is claiming.

The Court was referred to more authorities which include ZIMRA v Mudzimuwaona SC 4/18;DNS(Pvt) Ltd v ZIMRA; PTC v Swabata SC42/03; Madyara v Globe and Phoenix Industries (Pvt) Ltd 2002 (2) ZLR 269 (S).

The position adopted on behalf of the respondent was that in addition to abiding by the papers filed of record, there was no evidence in support of the applicant’s case. It was submitted that the applicant was expected to find alternative employment within a period of six

(6) months and not more. It was argued that the applicant failed to mitigate his loss and that there was no evidence that he did so.

Reference was made to the case of Madhatter Mining Company v Marvellous Tapfuma SC 51-14 for the submission that a dismissed employee has the onus

to mitigate his loss from the date of dismissal. The Court was referred to case authorities in support of the respondent ‘s position which cases include the following: Erickson Mvududu v ARDA & Anor CCZ5-21;Delta Beverages (Pvt) Ltd vMurandu [2015]ZWSC38; First Mutual v Muzivi SC9-07 ; Redstar Wholesalers v Edmore Mabika SC52/05 .

It is trite that a dismissed employee has a duty to mitigate his or her damages. In Ambali v Bata Shoe Co Ltd 1999(1)ZLR 417 (S) the Supreme Court stated that :

‘ I think it is important that this court should make it clear, once and for all,that an employee who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit around and do nothing. He must look for alternative employment. If he does not, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have expected to find alternative employment. The figure may be adjusted upwards or downwards. If he could in the meanwhile have taken temporary or intermittent work, his compensation will be reduced. If the alternative work he finds is less well-paid his compensation will be increased.

There are also those, and Ambali is one of them, who seem to believe that they must on no account look for alternative employment; that so long as their case is pending they must preserve their unemployed status; that if they look for and find a job in the meanwhile they will destroy their claim.’

In the present matter there is not much that shows that the applicant made serious efforts to look for employment. It is not in dispute that the economic environment in Zimbabwe is harsh. However , serious efforts to look for alternative employment must still be made . The principle that it is the duty of the employer to prove that an employee made efforts to look

for employment should not stop a dismissed employee from ensuring that they mitigate their loss.

It is trite that in a claim for damages where the order has retrospective effect, the employee is entitled to their back pay. In Madyara v Glob e and Phoenix Industries (Pvt) Ltd (above) the Supreme Court stated as follows:

‘ As far as back-pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect. In my view, both of them are entitled to back-pay and benefits. The only difference between them is that one gets his job back whilst the other is paid damages for the premature termination of his employment contract.’

What this means is that applicant is entitled to his back pay and benefits. These will therefore be granted as prayed. The applicant is said to be in his sixties. This appears not to have been disputed by the respondent. The chances of him securing alternative employment continue to diminish. Respondent on the other hand simply indicted that the applicant should not get more than 6 months’ worth of damages. Respondent did not suggest at what rate such damages should be calculated.

After assessing the record including the submissions it is my considered view that the applicant is entitled to 12months salary as damages in lieu of reinstatement.

The applicant is therefore entitled to the following according to his claim:

Salary 107 months	= USD 233 348.81

Fuel 150litres per month for 107 months	= USD24 075.00

12months salary as damages in lieu	=USD14 304.00

Of reinstatement

TOTAL	=USD271 727.81

ORDER:

The respondent is accordingly ordered to award the applicant the amount of two hundred and seventy-one thousand seven hundred and twenty- seven United States dollars and eighty-one cents (USD 271 272.81) or its equivalent in local currency using the official exchange rate prevailing on the date of payment.

CALEB MUCHECHE AND PARTNERSM LAW CHAMBERS, APPLICANT’S LEGAL PRACTITIONERS. DUBE, MANIKAI &HWACHA, RESPONDENTS’ LEGALM PRACTITIONERS.