Pias Nago v Pungwe Breweries and Marketing

IN THE LABOUR COURT OF ZIMBABWE                               JUDGMENT NO. LC/MC/23/2013
HELD AT HARARE ON 30 JANUARY, 2013                    CASE NO. LC/ MC/29/2010
In the matter between



PIAS NAGO                                                 –                Appellant
And

PUNGWE BREWERIES AND MARKETING                            –                Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant           - E.G. Mwandipe (Unionist)
For Respondent          - T. Mukwindidza (Legal Practitioner)




MATANDA-MOYO, L.

       This is an application for quantification of damages following this court’s

ruling that ;
       “the Respondent be and is hereby ordered to reinstate the Appellant with no loss of salary and
       benefits with effect from date of dismissal
       Or
       In the event that reinstatement is no longer possible the Respondent be and is hereby ordered
       to pay the Appellant damages as agreed between the parties in lieu of reinstatement. Should
       parties fail to agree either party is free to approach the court for quantification “



       Parties have failed to agree on quantum and in line with the judgment

above Applicant makes this application. The Respondent raised a point in limine

that the application is not in terms of this court’s rules. The wrong procedure

was used, that is, Applicant filed a chamber application instead of a court
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application. There is no affidavit accompanying such an application and the

application refers to case law which is irregular.



      Section 14 of the Labour Court rules provides for the application which

should be made before this court. Applicant has failed to comply with Section

14 above. The question is whether such failure renders the application totally

defective. I do not think so. The rule does not oblige the Applicant to file an

affidavit. It only obliges Applicant to complete form LC 1. The fact that there is

no affidavit filed is irrelevant. The Applicant is only obligated to file supporting

documents to his claim. In this application Applicant was to file salary slips for

example and a contract of employment spelling out his benefits. The mere fact

that Applicant omitted to file such documents does not render the application

defective. Such documents can still be produced during or in the course of the

hearing. In terms of Section 90 A (4) of the Labour Act, this court is empowered

to call parties to give evidence.



      I however agree with the Respondent that in such application no case law

should be cited.



      It is my finding that such application is properly before me and I allowed

parties to produce evidence during the course of the hearing.



Applicant claimed backpay and benefits as follows;

From 28 April 2010 to August 2010

      Basic pay                     $400.00

      Transport allowance                $35.00


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      Housing allowance         $30.00

      Cellphone allowance              $10.00

      Meal allowance            $32.60

              Total             $507.61



$561.61 per month for 5 months = $ 2 538.05

      September 2010 to July 2011

      Basic pay                 $546.01

      Transport                 $40.00

      Housing                   $40.00

      Cellphone                 $13.50

      Meals                     $48.32

              Total             $677.83



$677.83 per month for 11 months = $ 7 456.13



He also claimed pension in the sum of $1 748.98 and NSSA contribution $299.83.



      Appellant claimed 7 years damages at $913.13 per month a total of $76

702.92 and leave days equivalent to 16 months which translates to $1 404.82.

He also seeks pension and NSSA contributions to be paid as follows.



Pension to LAPF at 17.5% a total of $15 897.23

         NSSA 3% a total of $2725.24



Applicant claimed uniforms per year of:


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             3 shirts at $18.00 each         $54.00

             3 trousers at $15.00 each               $45.00

             1 tie at $5.00 each             $5.00

             1 pair shoes at $30.00          $30.00

                    Total                    $134.00



He claimed the benefit for 7 years, a total of $938.00. Applicant prayed for

interest and cost of suit.



      Respondent opposed the amounts sought by the Applicant Respondent

submitted that at the time of dismissal Applicant was earning $470.25 per

month inclusive of allowances. Applicant was a managerial employee and had

his salary determined by the Board and not by Collective Bargaining Agreement

of the National Employment Council of the Clothing Industry.            As proof

Respondent attached the minutes of the Board which are on pages 16-22 of the

record in particular page 20 paragraph 5.3. Respondent therefore urged this

court to throw out Applicant’s figures.



      Respondent also provided a claim made by Applicant on 25 July 2011 on

page 15 of the record. From February to August 2009 Applicant therein claimed

$470.25 per month in salaries and allowances.          From September 2010 he

claimed $613.37. His total claim was $13 828.96. Respondent submitted that

Applicant is not being truthful to the court. Respondent urged this court to

accept the figure of $470.25 as Applicant’s salary and allowance for the period in

question.




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      Respondent also submitted that Applicant was paid a total of $3 780.00

which should be deducted.



      Respondent also disputed the uniform claim.                  Applicant did not wear

uniform as a managerial employee.                Such benefit did not accrue to the

Applicant. Respondent urged this court to dismiss the claim for uniforms.



      Respondent disputed the claim for pension as it only accrues upon

retirement. On the issue of damages Respondent submitted that in terms of the

law Applicant was to mitigate his losses. He failed to do so and should not be

awarded any damages.



      In our law backpay and benefits form part of damages. In considering

damages this court has to first deal with the issue of backpay and benefits. In

an application for quantification the Applicant has an onus to prove his

entitlement. The Applicant has an onus to prove his entitlement. The Applicant

submitted that he fell under the Collective Bargaining Agreement for the

National Employment Council for the Catering Industry. This is not correct. This

court has already pronounced in its judgment that Applicant was a managerial

employee.     On page 2 of this court’s judgment which gave rise to this

Application, paragraph 2 thereof, the court had this to say;


      “the Appellant (Applicant herein) was employed by the Respondent as a buyer with effect from
      1 January 2008. This was a managerial position-----“(my emphasis)


      Applicant did not appeal against such finding. Such finding therefore

remains binding on myself.           Having made the above finding the salary of

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Applicant was therefore determined by the Board. Applicant was earning a total

of $470.25 at the time of his dismissal. There is no proof before me that there

were any raises in salaries and allowances. The Respondent should pay to the

Applicant following as backpay and benefits;

      $470.25 per month from 23 April 2010 to 8 July 2011 a total of $6 583.50

less amount paid of $3 780.00. Applicant’s claim on uniforms fails for lack of

evidence that indeed Applicant was entitled to such uniforms.



      Applicant claimed 7 years damages in lieu of reinstatement. It is well

established that an employee who considers himself to have been unlawfully

dismissed should mitigate his damages by taking temporary employment. See

Madyara vs Globeck Phoenix Industries (Pvt) Limited the Raw Mine SC

58/01, Gauntlet Security Services (Pvt) Limited vs Leonard 1997(1) ZLR

583(S). However the onus is on the employer to show that the employee should

have earned an income. In this case the Applicant conceded that he never

made any efforts to get alternative employment as no one can be expected to

find employment in the current economic situation. However the low places the

onus on the employer and the employer has not discharged such onus.



      Applicant in claiming 7 years damages should prove before this court that

it would take him 7 years to obtain alternative employment. The Applicant

despite the court giving him an opportunity to file further papers to prove this

aspect has failed to do so. There should be finality to litigation. This court

cannot continue to seek evidence from Applicant. Since Applicant has failed to

prove this claim, the claim fails.




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Accordingly it is ordered as follows;



      1) That the Respondent pay to Applicant backpay and benefits in the sum

          of $6 583.50. The Respondent is to deduct the amount of $3 780.00

          already paid.

      2) That Applicant’s claim on uniforms fail and is dismissed.

      3) That the Respondent pay to the Applicant leave days equivalent to 1 1/2

          months salary that is $245.00

      4) Pension contributions and NSSA contributions to be paid to LAPF and

          NSSA respectively.




Zimbabwe Catering and Hotedls Workers Union– Appellant’s Representative

Bere Bothers – Respondent’s Legal Practitioners




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