Steven Office v Dharwizi Transport (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/197/25
HELD AT HARARE 7th MARCH 2025
CASE NO R-LC/H/APP/607/19
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/197/25

BEFORE THE HONOURABLE MRS JUSTICE MAKAMURE JUDGE.

FOR THE APPLICANT: ADVOCATE R.H. GOBA

With him Ms T.L.GANDAZHA

FOR THE RESPONDENT:L.T.GONA MAKAMURE J:

This matter was initially concluded by this Court in February 2015 as will be shown below. It is now 2025 and the matter is still to reach finality. The wheels of justice have run really slowly. This is regrettable.

Mr Steven Office (Mr Office), the applicant, was employed by the respondent as a truck driver with effect from January 2011. On 24th September 2012 he was dismissed from respondent’s employ following disciplinary proceedings. He approached this Court on review. This Court in Judgment Number LC/H/137/2015 dated 20 February 2015 set aside

the dismissal and ordered his reinstatement without loss of salary or benefits with effect from the date of the unlawful dismissal with an alternative order for an award of damages should reinstatement be no longer tenable.

Respondent did not reinstate the applicant. The respondent appealed the judgment of this Court to the Supreme Court. The appeal was not successful. The judgment of this Court remains extant. This is therefore an application for quantification of the appropriate damages since the parties did not quantify such damages. This background is common cause.

The applicant deposed to a founding affidavit as the basis of his claim. He is claiming damages from the date of dismissal, that is September 2012 to February 2015 when the Court ordered his reinstatement. The applicant thereafter filed answering /supplementary affidavits as indicated in the heads of argument . There is no provision for answering affidavits in the Rules this Court .The Court will however be guided by such affidavits particularly the one deposed to on 22nd July 2020.This is done in the interests of finality to litigation and in terms of Rule 32 which empowers this Court to condone matters which are not specifically provided for in the Labour Court, Rules,2017.

In addition to the founding affidavit, the applicant led evidence in Court. He is now aged 61 (turning 62). He confirmed what is common cause. According to his contract of employment he was entitled to the following:

Monthly Salary – US$550 .00,

Normal allowance- US$470.00 per month Lunch allowance-US$120.00 per month.

While he confirmed the above, he also stated that he was entitled to an annual bonus equivalent to a month’s salary. This also appears in the contract of employment between the

parties. He further stated that he was entitled to transport allowance of US$218.00 per month.

He stated that after dismissal he did not look for employment but ran a bottle store where he was selling clear and opaque beer. He had set up the bottle store before dismissal in order to supplement his income. After dismissal and when reinstatement did not materialize, he resorted to running the bottle store. He was earning anything between US$500.00 and US$700.00 per month depending on the volume of customers. This income did not last due to the harsh economic environment which saw people losing jobs particularly after what is commonly referred to as the ‘Zuva judgment’ ( Don Nyamande and Kingstone Donga v Zuva Petroleum (Private) Limited SC43/15). He therefore lost customers. As a result of diminished customer base, the bottle store was closed down in January 2016.

After this and in 2017, but without referring to a specific date, Mr Office was diagnosed with a chronic medical condition known as rheumatoid arthritis. The condition causes random swelling to joints including the neck, knee and shoulder joints. With the passage of time the condition worsened and caused the applicant some deformities. When he was giving evidence, he indicated that he could not even lift his hands and the hands are now also deformed. As a result of the deformity he can no longer drive and he said he has no strength to carry heavy things. Since the bottle store closed down, he is now dependent on his daughter who is abroad and sends him US$200.00 a month. He also let two rooms at his residence in Kuwadzana, Harare, and gets US$140.00 per month. This is the evidence which he maintained both in chief and under cross examination.

The respondent called the evidence of one Mr Mafuka Hungwe who was said to be a human resources practitioner. Mr Hungwe was in the employ of the respondent at the time of the applicant’s dismissal. He was involved in the dismissal of the applicant from employment. He stated that in 2012 the prospects of employment for truck drivers was high. He did not present any documentary evidence to back his statement.

Mr Hungwe was asked to comment on the effect of the Presidential,Powers (Temporary Measures)(Amendment of Reserve bank of Zimbabwe Act & Issue Of Real Time Gross Settlement Electronic Dollars(RTGS Dollars))Regulations, Statutory Instrument 33/19 (S.I.33/19).His comment was that historical debts are redenominated at the rate of 1:1 with the United States dollar. He stated that S.I. 33/19 enables an employer to pay an employee in local currency. Under cross examination Mr Hungwe indicated that he left the respondent in 2016. He was not able to comment on the applicant’s contract with respondent. On the question of leave days Mr Hungwe referred the Court to provisions of the Labour Act , Chapter 28:01 which provides for the accumulation of leave days to a maximum of 90 days. He was asked about the applicability of S.I.33/19 to the applicant’s dues considering that at the material time the debt or the damages had not been quantified and he declined from commenting. Mr Hungwe was very guarded in giving evidence. When he was asked in re- examination about what role he played during the dismissal of the applicant he declined from commenting.

In the heads of argument filed on behalf of the applicant the Court was referred to case authorities which include Gauntlet Security Services (Pvt ) Ltd v Leonard 1997(1) ZLR 583;Chegutu Municipality v Manyora 1996(1) ZLR 262(SC);Clifford Mushipe v Colcom Foods LC/H/211/2008; Mukwindidza and 13 Others v Apex Corporation t/a Marondera Foundry LC/H/217/2008; Chiriseri & Anor v Plan International 2002(2) ZLR 261; Leopard Rock Hotel Co (Pvt) Ltd v Van Beek SC 6/2000; Kuda Madyara v Globe and Phoenix Industries (Pvt) Ltd t/a RAN Mine SC 63/02;Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417.Nyaguse v Mkwasine Estates (Private ) Limited 2000 (1)ZLR 571;Fokoseni v Lobels Bakery SC 20/2004.It was submitted on behalf of the applicant that due to the economic meltdown the applicant was unable to secure alternative employment of comparable status . In the result he ran a bottle store. For that reason, the Court was urged to

accept that he did not sit down and do nothing but he mitigated his loss. It was further submitted that there was sufficient evidence for the Court to award the applicant backpay and benefits together with damages in lieu of reinstatement .

In closing submissions, it was submitted that the applicant is entitled to full salary and benefits from the date of dismissal up to 4th October 2018 when the Supreme Court dismissed the respondent’s appeal which appeal had suspended execution of the of the Labour Court judgment. It was also submitted that S. I. 33/19 should not affect the quantum of damages because by the effective date , the amount due to the applicant ( the debt) had not been quantified.

It was contended further that currently Zimbabwe is using dual currency and therefore the damages should be paid in United States dollars. It was also submitted that the applicant’s salary and benefits were pegged in that currency and therefore the damages should be paid in that currency.

With respect to the respondent’s witness, Mr Hungwe, it was submitted on behalf of the applicant that his evidence was not useful to the Court. I agree. He said as little as possible . His evidence therefore is not useful to the Court.

[15In paragraph 21 of closing submissions on behalf of the applicant it is stated that computations of the damages will be based on the contention that from 4 September 2012 to the date that the amount due is quantified , the applicant was never dismissed and is therefore entitled to payment of his salary and benefits. It was highlighted that the respondent has been in contempt of the court order by even opposing the present application without specific views on the applicant’s entitlement. The submission is therefore that the applicant is entitled to damages with effect from 1st September 2012 to 31st March 2025 that is salaries and benefits for a period 151 months. The 151 months are calculated for the periods 1/9/2012 to

30/9 2018 and 1/10/ 2018 to 31/03/2025. The total claimed is therefore three hundred fourteen thousand five hundred and ten thousand US dollars and fifteen cents ( US$314 510.15).

The applicant prays for the respondent to bear costs on the punitive scale. The prayer for costs on the punitive scale is made due to what the applicant submits as the respondent’s contemptuous attitude to the orders of the courts and the severe prejudice which was suffered by the applicant.

The respondent’s position on the other hand is that the amount of damages being claimed is highly inflated and at times, with no legal basis. It was submitted that backpay is only for the period between dismissal and reinstatement. Thus the relevant period to consider for quantification of damages according to the respondent is for the period between September 2012 and February 2015.It was further submitted that during that period the economy of Zimbabwe was performing well enough for the applicant , with due diligence , even without professional qualifications, to obtain some form of employment within a period of four months.

As for the claim for leave days it was submitted on behalf of the respondent that there was no basis for accumulation of leave days after the applicant’s contract had been terminated. It was also submitted with respect to transport allowance that this allowance could not be due since the applicant did not incur any costs going to work.

The following are some of the authorities cited on behalf of the respondent: Mobile Zimbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H); Muchini v Adams S 47/2013;Hiltunen v Hiltunen 2008 (2) ZLR 296 (H) @301B; BHP Minerals Zimbabwe (Pvt) Ltd v Takawira 1999 (2) ZLR 77(S); Ambali v Bata Shoe Company 1999 (1) ZLR417 (S).

In closing submissions two proposals were made on behalf of the respondent . The first one was that since the applicant started to run a bottle store soon after losing employment, he repudiated the contract of employment between himself and the respondent such that it would have been impossible to reinstate him. It was submitted that under the circumstances, there were no damages due to the applicant. The case of TelOne v Kuyumani Zulu SC 110/04 was used in support of that proposition. The second option was that the applicant had a duty to mitigate his loss as laid down in Ambali v Bata Shoe Company (supra) .It was submitted under the circumstances that the claim for severance package had no basis at law and should fail. It was submitted further still that the claim for damages is confined to the period between dismissal and the order for reinstatement , that is from September 2012 to February 2015.

It was also submitted on behalf of the respondent that in view of the fact that the claim was made in 2015 the provisions of S.I. 33/19 apply to the claim and the rate of 1:1 between the United States dollar and the ‘RTGS dollar’ should be used in calculating what is due to the applicant. Having concluded that the applicant ought to have secured employment within four months of losing employment, the respondent based its calculations on the 1:1 rate of the US dollar to the local currency equivalent in calculating the applicant’s salary and benefits .It quantified the damages due to the applicant as amounting to ZWL 6 318.64 and 600 litres of petrol at the prevailing retail price of the commodity.

It is trite that in any application , the application stands or falls on its founding affidavit. In Austerlands (Private ) Limited v Trade & Investment Bank Limited and Two Others SC 92/05 the Supreme Court stated that:

‘The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be,

because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny.’

See also Muchini v Adams & Ors SC(supra);Unki Mines (Private) Limited v Dohne Construction (Private ) Limited 18/23.

In the present matter the applicant in his supplementary answering affidavit dated 22July 2020 ( and the last of his affidavits with the first one being dated 19 August 2019 and the next one dated 10June 2020) stated that :

‘ I concede to the quantification of damages to be calculated from the date of my unfair dismissal which is September 2012 to February 2015 when the order of reinstatement was made by the Court.’

This therefore means that what is stated in that affidavit is what the applicant’s claim is based on. While the arguments showing that the applicant has suffered a lot of prejudice due to the conduct of the respondent and therefore entitled him to be compensated from the date of dismissal in September 2012 to the end of March 2025 , the affidavit is confined to the period from dismissal to the date when reinstatement was ordered in February 2015.As already indicated, this is what will guide the Court.

In Ambali v Bata Shoe Company (supra) the Supreme Court stated that where a person has been dismissed , he or she is entitled to an amount he/she would have earned had the contract not been prematurely terminated. They may also be compensated for the loss of any benefits to which they were entitled but deprived of as a result of the wrongful termination of employment. The case of Ambali (supra)emphasizes the need for a dismissed employee to look for alternative employment in order to mitigate their loss.

In Madyara v Globe and Phoenix Industries (supra) the Supreme Court stated that:

‘ 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.’

In Tel One (Private) Limited v Kuyumani Zulu SC110/04 the employee was suspended from employment. While on suspension he took up alternative employment. By so doing the Supreme Court held that since he was on suspension as opposed to having been dismissed, he repudiated his contract with the employer as he was no longer available to go back to work. An employee under suspension has got an obligation to avail himself for duty when called upon to do so. This authority is therefore not relevant to the present matter. In the present case Mr Office was dismissed . He had an obligation to mitigate his loss.

In Fokoseni v Lobels Bakery (supra) the employee was dismissed from employment as a tea maker . He was unskilled. He mitigated his loss by working in people’s fields. The employee was 65 years old and not likely to secure employment. The Supreme Court held that what he had done was sufficient to amount to mitigation of his loss .

In the present case the applicant claims the following:

Backpay – US $ 860. 44 x 29 months = US$ 24 952. 76

Annual Bonus – US$550 .00x 3years= US$1650.00

Leave days US$860,44x3years = US$2581,32

Loss of employment US $860.44x 47 months=US$ 40 440.68

Fuel 150litres petrol per month x29 = 4350 litres

It is trite that after reinstatement following wrongful dismissal, a reinstated employee is entitled to back pay and benefits. This is because it is his or her entitlement. The difference between an employee who has been reinstated and one who has not been is that one continues to work while the other is out of employment. Kuda Madyara v Globe & Phoenix Mine ( supra). Thus, regard must be had to such loss of employment and the need for compensation. An employee who is not reinstated is there entitled to damages in the wider sense of the word.

In the present matter the applicant will be turning 62. He now lives with disability due to the effects of rheumatoid arthritis. In his affidavit he claims 47 months’ salary. He says this is the period between his dismissal and when he found alternative employment (running the bottle store). He therefore mitigated his loss by running a bottle store. In Fokoseni v Lobels Bakery(supra) the Supreme Court found payment of damages which were the equivalent of the employee’s salary for a period of five years and seven months to be appropriate .

The respondent’s attitude shows reluctance to award the applicant anything meaningful. The first proposal which the respondent made was that since the applicant operated a bottle store soon after he was dismissed from employment ,he repudiated his contract of employment with the respondent and therefore was not entitled to any damages. This proposal runs contrary to the established principle laid down in Dalny Mine v Banda(supra) and numerous other authorities on this subject. A dismissed employee has a duty to mitigate his loss by seeking alternative employment.

The alternative proposal made by respondent to the applicant’s claim is an award of ZWL 6 318.64 and 600 litres of petrol valued at the prevailing retail price. This alternative means that the applicant would only get value for the fuel. It is doubtful that he would get anything meaningful from the ZWL amount.

After considering the submissions from the parties, it is my considered view that the applicant has proved his case on a balance of probabilities. The applicant is entitled to backpay and benefits based on his net salary of US$860.44 per month as reflected on his pay slip for August 2012. The rest of the damages is based on his basic salary of US$550.00 per month as reflected on the contract document. The contract of employment also entitled him to an annual bonus equivalent to a month’s net salary. He will also be paid for the leave days as part of back pay.

The application for damages in lieu of reinstatement is accordingly granted as follows:

1. Backpay and damages in lieu of reinstatement: US$ 24 952.76 +US$40 440.68=US$65 393.44.

Annual bonus US$550.00x3years	=US$1650 .00

Leave daysUS$860.44 x 3 years	=US$2581.32

Fuel 150litres petrol x 29 months=4350.00 litres

It is accordingly ordered that the respondent pays the applicant damages in lieu of reinstatement as follows:

US$69 624.76 ( sixty-nine thousand six hundred and twenty- four US dollars and seventy -six cents).

4350.00 litres petrol at the prevailing retail price

Costs of suit.

C. MPAME & ASSOCIATES, APPLICANT’S LEGAL PRACTITIONERS. GWAUNZA & MAPOTA , RESPONDENT’S LEGAL PRACTITIONERS.