Onward Bhoso Sithole v Chipinge Town Council

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/11/14
HELD AT MUTARE 28TH NOVEMBER 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/MC/11/14

HELD AT MUTARE 28TH NOVEMBER 2013	CASE NO LC/MC/27/04

& 28TH FEBRUARY 2014

In the matter between:-

ONWARD BHOSO SITHOLE			Applicant

And

CHIPINGE TOWN COUNCIL			Respondent

Before The Honourable E Muchawa, Judge

For Applicant		Mr T.G. Mukwindidza (Legal Practitioner)

For Respondent		Mr J Masango (Legal Practitioner)

MUCHAWA, J:

This is an application for quantification of damages following this Court’s order of reinstatement in applicant’s favour which confirmed an earlier arbitral award.

Applicant claims the following:

Back-pay of salary and benefits from the 6 September 2003, being date of unlawful dismissal, to 9 January 2009, being the date of this Court’s judgment;

NSSA and pension contributions deducted from his salary;

Bonus as provided in the contract;

Cash in lieu of accumulated leave;

Notice pay equivalent to 3 months’ salary;

36 months salary as damages in lieu of reinstatement;

Interest on all amounts due and payable;

Costs of suit.

Respondent opposes this application.

I proceed to deal with each aspect of the claim in turn

Back-pay of salary and benefits – computation

Whereas applicant is claiming back-pay of salary and benefits from

6 September 2003, being the date of unlawful dismissal, to 9 January 2009, being the date of this Court’s judgment, respondent opposes this.  It is argued on behalf of respondent that the back-pay should be calculated from the

6 September 2003 to the 2April 2004 being the date of the arbitral award which was subsequently confirmed by this court on the 27 November 2009.

My perusal of the record shows that this matter was heard in Mutare on the 29 January 2009 and judgment was handed down on the 27 November 2009.  The date of this court’s judgment is therefore the 27 November 2009.

The issue is the date to which the back-pay is payable.  Applicant referred me to decisions from this court to support that back-pay should be payable from the date of unlawful dismissal to date of judgment (see Vitalis Marufu v Servcor LC/H/33/2006.

Respondent referred me to Supreme Court cases of Oliver Chiriseri and Anor v Plan International SC56/2002 and Redstar Wholesalers v Edmore Mabika SC 52/05.  These cases show decisively that back-pay is payable to the date on which the order of reinstatement is made.  In this case that date is

2 April 2004.  There is no basis for awarding back-pay in respect of the period after this.  So awarding would create the absurd position of being unfair to litigants who are not responsible for the inherent delays within the justice system. Applicant is therefore entitled to 8 months back-pay of salary and benefits.

Claimed salary and benefits

Applicant tendered his contract of employment in support of his claim.  I consider each of the contractual entitlements below:

Salary

It was agreed that applicant’s salary was Z$200 000 per month at the date of dismissal in September 2003.  Applicant did not provide proof of an inbuilt 10% per annum increment.  He is therefore entitled to

Z$200 000 x 8 months

Housing, water and gardener’s allowances

Applicant merely stated that his claim was for Z$50 000.00 a month for

housing allowance and Z$20 000.00 per month as gardener’s allowance as well as 30m³ x 80 of water.   A payslip was tendered in support of these amounts claimed which shows these were his entitlements except for the water allowance.  The contract shows the water entitlement as 30m³ per month or an amount equivalent to such where such benefits cannot be accessed.

Respondent referred me to the Kuda Madyara v Globe and Phoenix

Industries t/a Ran Mine SC 63/02 for the assertion that applicant should produce proof that he incurred such costs otherwise his claim will be dismissed.  I note however that in the Kuda Madyara case supra, the benefit was to free accommodation which included free water and electricity.  In casu the housing and gardener’s benefit had a clear monetary value on the payslip.  There is however no such value or proof relating to the water allowance.  In the circumstances I allow a back-pay on the housing allowance of

Z$50 000.00 x 8; and gardener’s allowance of Z$20 000 x 8.  The water allowance is dismissed for lack of evidence of the actual amount paid.

Transport allowance

Applicant was entitled to a company vehicle within and around Zimbabwe or 200 litres petrol fuel per month if capacity to use of vehicle is not possible in terms of his contract.

Respondent argues that this allowance was meant to benefit both the employer and employee through facilitationof applicant’s reporting for duty.  In submissions, respondent conceded that applicant could only be entitled to ½ of this allowance.

In the circumstances I award 100 litres petrol fuel per month x 8 months as back-pay.

Telephone allowance

Applicant’s entitled is 5% of the gross salary per month.  This translates to Z$10 000 per month based on the documentary evidence before me.

Respondent argued that this too was for the mutual benefit of employer and employee and conceded ½ of the allowance.

Applicant is therefore awarded Z$5000.00 x 8 months in telephone allowance.

Responsibility allowance

In terms of the pay slip tendered in evidence, applicant’s entitlement is Z$30 000.00 per month.

Respondent argued however that this would have been paid if applicant had been responsible towards the respondent’s work.  For this period he was not at work, it is alleged that there is no responsibility to talk of and therefore no basis for this award.

I agree with respondent.  The claim for a responsibility allowance has no legal basis and is dismissed.

Academic Professional Allowance

In terms of applicant’s contract of employment, respondent undertakes to pay for any significant human resources development venture which is relevant to the incumbent’s job.

No evidence was placed before me of any expenses incurred relating to applicant’s academic professional development which is relevant to respondent.  This claim has no legal basis and is dismissed.  In fact applicant did drop this claim.

Electricity

This claim by applicant for electricity was not found listed as a benefit in applicant’s contract of employment and the payslip tendered in evidence.  I find therefore that there is no legal basis for it.

Medical Allowance and School fees

In terms of his contract of employment, applicant is entitled to a medical allowance and school fees for his school going children.  No claim was put in for these two items and there is therefore no legal basis for awarding same.

Bonus

Applicant is claiming a bonus entitlement in the form of a 13th cheque.  My perusal of his contract of employment does not however include an entitlement to a 13th cheque.

Respondent avers that a bonus is performance based and is not automatic.  (see Clan Transport Company (Pvt) Ltd Clan Transport Workers’ Committee SC/01/02 at p4.

Applicant has not proved his entitlement to a bonus and there is no legal basis for me to award same.  This claim is therefore dismissed.

Annual Leave Days

At the time of dismissal applicant had accrued 137.5 days.  He is therefore entitled to payment of same at the rate of Z$200 000 per month.  There is no legal basis for payment of other leave days outside this.

NSSA and Pension Contributions As Per Accrual

Applicant is claiming NSSA and pension contributions as per accrual.  He claims to have contributed for 48 months for both NSSA and the pension.

I find no legal basis for awarding this claim against respondent as such claims are only valid and are processed from the respective statutory bodies in terms of their relevant regulations.

Notice Pay

Applicant claims notice pay equivalent to three months salary.

Respondent avers that there is no legal basis or justification to claim this in quantification proceedings.

Applicant did not provide any evidence before me to support this claim and no legal basis was advanced for this.  I therefore find that there is no merit in this claim.

I now proceed to consider applicant’s entitlement to damages in lieu of reinstatement.

Damages In lieu of Reinstatement

The law regarding damages for unlawful dismissal is settled.  In Ambali v Bata Shoe Company Ltd  1999 (1) ZLR 417 (S) at page 417 D.

“Where a person has been wrongfully dismissed (rather than wrongfully suspended) from his employment, and seeks damages rather than reinstatement, he is entitled to be awarded the amount of wages or salary he would have earned had his contract not been prematurely terminated.  He may also be compensated for the loss of any benefits to which he was deprived as result of the wrongful termination.”

Thelaw expects such employee to mitigate his loss.  In Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR  583 and subsequently in Ambali v Bata Shoe Company Ltd (supra)it was settled that an employee must mitigate his loss.  He must look for and accept any reasonable offer or alternative employment.  If he fails to take employment when it would have been reasonable for him to do so, a deduction will be made in terms of the remuneration he would have earned from substituted employment.

In his own evidence applicant argued that he looked for alternative employment immediately upon learning that reinstatement was not an option in April 2004.  He claims to have been hindered in his search, by the respondent’s refusal to hand over his property which includes his IPMZ Diploma in HR, National Diploma in HR Management from HEXCO, City and Guilds Diploma in Computer Operations and Packages.  He sought a temporary teaching position from his church ZCC and is currently doing voluntary work with the church from which no payment is given.

Further applicant tendered a newspaper article which in fact was exonerating applicant as a further hindrance in his search for employment.

Two letters were tendered as evidence that applicant sought alternative employment but could not be engaged due to this matter that was pending before the Labour Court.  One letter from Ushe Motors purportedly written on the 1st August 2005 has a letter-head with contact numbers listed as “+263 773 433 524/263 716 158 319”.   I was urged by respondent to take notice that in 2005 both Econet and Net One did not have numbers starting as “0773” and “0716” respectively.  This letter was seen as an after thought to give the impression that applicant had mitigated his loss in 2005 yet he had not.  On this basis this letter is thrown out and is not considered as evidence of applicant’s attempt to secure employment.

The second letter from Kerzer Computer was written on the 4 October 2009.  I was pointed to that date being a Sunday and the improbability of this being a genuine letter.  Without going into the genuineness or otherwise, I think a letter of application that is coming some five years after the order of reinstatement does not help applicant much.

It is clear to me that from his own evidence, applicant did not show that he looked for alternative employment immediately upon learning that reinstatement was not an option.  If he did, he did not provide adequate evidence of having done so.

In Nyaguse v Mkwasine 	SC 34/2000 MCNALLY JA stated;

“The onus is on the employer to show that the employee has or should have earned an income from some other source.”

I am satisfied that respondent has discharged this onus.  Respondent established that applicant could have applied for a temporary teaching position outside his church’s schools.  He could also have secured some consultancy work in respect to his Diploma in Computer Operations and Packages especially relative to HR functions.

I therefore find that applicant did not do enough, quickly enough to mitigate his loss.  At the same time I note the barriers presented by respondent holding on to applicant’s certificates.

Applicant is claiming damages for 36 months.

Due to applicant’s qualifications and experience in HR, administration, computer operations and packages and his age, I find that, if applicant had seriously gone about looking for alternative employment, he should have been able to get alternative employment within 18 months.

In the circumstances I find that applicant is entitled to damages to be calculated on the basis of an 18 month period.  Applicant has restricted his claim to the salary only of Z$200 000.00 per month.  Applicant is therefore entitled to the following:

Back-pay on salary and benefits

Salary @ Z$200 000.00 x 8 months = 1 600 000

Housing allowance @ Z$50 000.00 x 8 months = 400 000

Gardener’s allowance @ Z$20 000.00 x 8 months = 160 000

100 litres of petrol fuel per month x 8 months = 800 litres petrol

Telephone allowance @ Z$ 5000 x 8 months = 40 000

Cash in lieu of leave days for 137.5 days = 916 666.67

Damages in lieu of reinstatement at the rate of Z$ 200 000.00 X  18 months = 3 600 000

Total								$6 716 666.67

Currency of payment

Applicant’s claim is that his damages in Zimbabwean dollars must be converted to and payable in United States dollars.  Alternatively he claims based on the salary which an employee in his grade or similar would be earning in United States dollars.  In submissions before me it was argued that the applicable exchange rate be that as confirmed by the Reserve Bank of Zimbabwe.

Respondent argued that the currency for the claims in question is the Zimbabwe dollar currency which is no longer legal tender in our country. Further it was argued that there is no legal precedence to pay the claim in United States dollars nor is there legal basis or authority to use exchange rates.   The use of exchange rates, would result in serious injustice.

I note that an order sounding in Zimbabwean dollars would result in an injustice too.  Today the Zimbabwe dollar is valueless hence the use of US dollars.  The applicant did not lose his salary by choice but it was through on unlawful dismissal by the respondent.  In my view justice can only be done by awarding applicant damages in a currency that he can use.

The Supreme Court in the case of Central Africa Batteries v John Mhangu SC 79/10 also gave an order directing the conversion of Zimbabwe dollars to United States Dollars.

Date of conversion

I have made a finding that the back-pay is payable from the 6 September 2003 to the 2 April 2004 and that damages in lieu of reinstatement are payable for 18 months thereafter.  That whole period falls outside the 2008 and 2009 period for which RBZ conversion rates have been supplied.

In the circumstances it is ordered that

The respondent is to pay the applicant Z$6 716 666.67 to be converted to United States Dollars at a rate to be agreed between the parties failing which any party may make an application to this Court for determination of an applicable rate of exchange.

Further respondent is to pay to applicant, 800 (eight hundred) litres of petrol.

There is no order as to costs.

Murambasvina, applicant’s legal practitioners

Bere Brothers, respondent’s legal practitioners