Precious Chigwaza v Solta Group of Companies

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/60/16
HELD AT HARARE 28TH JANUARY 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/60/16

HELD AT HARARE 28TH JANUARY 2016			CASE NO LC/H/829/15

&  19TH FEBRUARY 2016

In the matter between:

PRECIOUS CHIGWAZA					Appellant

And

SOLTA GROUP OF COMPANIES			Respondent

Before The Honourable P Muzofa, Judge

Appellant			In person

For Respondent		W Madzimbamuto (Legal Practitioner)

MUZOFA, J:

The appellant appeals against an order granting him damages made in the following terms

Back pay $508.50

Vacation leave $254.25

Damages in lieu of reinstatement $3 051.00

In his grounds of appeal the appellant impugns the arbitral award in his

determination of back pay, failure to award transport allowance, cash in lieu of leave and that since the respondent was not in attendance at the hearing his claim should have been granted in toto.  Technically it was unopposed.

I will address the grounds of appeal seriatim.

Back pay

According to the appellant the arbitral award of 14 February 2014 reinstated him without loss of salary and benefits from the date of dismissal being 11 April 2013.  He was therefore entitled to 16 months’ salary in back pay	.  However the arbitrator only awarded one month’s salary as back pay.

For the respondent it was submitted that the arbitrator did not err.  It was respondent’s view that the law makes a distinction between reinstatement and damages in lieu of reinstatement.  To that extent these two offer different remedies.  In casu the appellant was not reinstated, had he been reinstated he would have been entitled to back pay.

The principles applicable in the assessment of back pay is now clear and settled.  Where an employee is reinstated ‘with no loss of salary or benefits’ his reinstatement is retrospective see Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 268 A – B and Zimbabwe United Passenger Company v Daison SC 87/02.

In this case the arbitral award of 14 February 2014 made the following order:

“1.	That the claimant be reinstated without loss of salary and benefits from the date of dismissal (11 April 2013)”

Clearly that order is retrospective.  Appellant would therefore be entitled to back pay from the date of unlawful dismissal to the date when the order of reinstatement was made that is 11 April 2013 to 14 February 2014 a period of ten (10) months.  Appellant did not justify why his claim is for sixteen (16) months.

The respondent’s exposition of the applicable principles is incorrect.  In Kuda Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine SC 63/02 at p 5of the cyclostyled judgment the late SANDURA JA specifically addressed the issue in the following terms

“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.”

There is no basis for appellant’s claim for back pay for sixteen months.  Appellant is therefore entitled to 10 months x $500 being $5000 in back pay.

Transport

The appellant submitted that since the first arbitral award had a retrospective effect he was entitled to his salary and benefits.  He was supposed to be awarded 16 months x $66 being $1056.00.  Respondent opposed this claim on the basis that the arbitrator’s determination was for damages in lieu of reinstatement and not benefits.

Damages are a function of evidence the appellant produced a pay slip which showed that he had a transport benefit of $66 a month.  The respondent did not dispute this benefit.  However it argued that the benefit was meant to assist appellant to travel to work.

I do not agree with the two submissions by the respondent.  The first award is retrospective with salary and benefits.  The appellant should get what was due to him but for the unlawful termination.  He is therefore entitled to $66 x 10 months being $660.00.

Cash in lieu of leave

Appellant submitted that the arbitrator erred at law by failing to award cash in lieu of leave in the sum of $666.67 (16 months x 2.5 day/30 x 500) but instead awarded fifteen (15) days.  The respondent submitted that the arbitrator’s findings were correct in that the arbitrator made a factual finding that it would have taken appellant six (6) months to find alternative employment.

The record of proceedings does not have a copy of the contract of employment entered into between the parties.  In the absence of the contract to show what was appellant entitled to in respect of leave days. The court will apply the provisions of section 14 A of the Labour Act [Chapter 28:01].

Subsection (1) of that section gives an employee vacation leave following the completion of the employee’s first year of employment with an employer.  In casu the appellant was employed by the respondent from 10 April 2012 until 11 April 2013.  Appellant had just completed his first year.  The appellant cannot claim vacation leave in the first year of service.  Subsection (2) of that section gives an accumulation rate of 2.5 days per month.  The arbitrator made a factual finding that it should have taken the appellant six (6) months to secure alternative employment.  From these six months appellant would be entitled to the fifteen days, as awarded by the arbitrator.  This ground of appeal is dismissed.

The appellant did not challenge the six months award for loss of employment therefore I will not address the issue.  I believe though prima facie that the award is reasonable in the circumstances.

The last two grounds of appeal raise the issue that the arbitrator erred by failing to grant appellant’s claim in the absence of any opposition from respondent.

During the quantification hearing before the arbitrator indeed the respondent was in default.  The arbitrator did not grant the appellant’s claim as requested.  The arbitrator went on to analyse the evidence before him and made an order that, as far as the evidence was concerned met the justices of the case.

Technically this was a default judgment.  See Redstar Wholesalers v Mutomba SC 142/04.  However an application for quantification of damages is purely based on evidence.  The applicant has to show that he is entitled to the claims made see First Mutual Life Ltd v Muzivi SC 9/07 at p 5 – 6 of the judgment.  The arbitrator in my view was bound to assess whether the applicant had proved the claim before granting it.  The two grounds of appeal have no merit and are therefore dismissed.

From the foregoing the appeal partially succeeds.  The following order is made.

The appeal be and is hereby upheld.

The arbitral award be and is hereby varied to read

“The respondent is ordered to pay damages to the appellant as follows:-

Back pay			$5000.00

Transport allowance	    660.00

Cash in lieu of leave	    250.00

Total			$5910.00

Less the applicable statutory deductions.”

Nyikadzino, Simango & Associates, respondent’s legal practitioners