Tafadzwa Ralph Mugabe V Zimbabwe Lawyers FOR Human Rights

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/178/23
HARARE, 31 MARCH, 2022
CASE NO. LC/H/563/21
AND 29 JUNE 2023
TAFADZWA RALPH MUGABE
APPLICANT
And
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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/178/23
HARARE, 31 MARCH, 2022
CASE NO. LC/H/563/21
AND 29 JUNE 2023

TAFADZWA RALPH MUGABE
APPLICANT

And

ZIMBABWE LAWYERS FOR HUMAN RIGHTS
RESPONDENT

Before the Honourable B.T Chivizhe, Judge;

For the Applicant
Advocate T.T.G. Musarurwa

For Respondent
Mr T.P. Chakanyuka (Legal Practitioner)

CHIVIZHE, J

The delay in handing down of this judgment is deeply regretted.

The matter was placed before me as an application for quantification of damages for constructive dismissal and payment of gratuity. The application was filed pursuant to an order issued by this court under reference LC/H/984/16. Through that judgment my colleague, Honourable Justice L.M. Murasi granted an application brought by the current applicant for the court to allow the appeal filed under LC/H/434/16 on the basis of respondent failure to file Heads of Argument. It is important to note that in the appeal under LC/H/434/16 was appealing against the arbitral award on the basis of the finding by Arbitrator that he had not been constructively dismissed and secondly that he was not entitled to claim gratuity.


Applicant’s Case


The applicant through his Founding Affidavit was making a claim for the following contractual entitlements;

- Gross monthly salary of US$3 500.00
- A 13\textsuperscript{th} cheque at the rate of one month’s salary.
- A laptop for personal and business use
- One Econet contract line for business and personal use
- A camera for business and personal use
- A motor vehicle for business and personal use
- Unlimited fuel for business and personal use
- Medical Aid for himself and three beneficiaries
- Safe house benefit
- 3 months’ notice pay in the event of termination of employment

The applicant was ultimately claiming for damages for constructive dismissal;

(1) 36 months’ salary computed as US$ 126 000.00
(2) Gratuity – 4 months’ salary 5.75 years … – US$80 500.00
(3) Reimbursement of medical aid expenses US$15 000.00
(4) Airtime Allowance 136 months x $10.00 per month as at March US$3 960.00
(5) Use of Vehicle and Fuel in lieu of vehicle 36 months c $110.00 per month as at March 2009 US$3 960.00
(6) Use of Laptop, cellphone and camera 36 months x $110.00 per month as at March 2009 US$3 900.00
(7) 3 months’ salary in lieu of notice US$10 500.00

The grand total of the claim was US$243 880.00 or the equivalent RTGS payable at interbank rate plus interest at the prescribed rate calculated from February 2010 up to the date of full and final payment.

On the date of hearing the Counsel for Applicant abandoned most of the claims save for the applicant’s claim for damages for constructive dismissal. He was now claiming for 36 months’ salary the amount of which was now to be payable, on the basis of the Zambezi Gas judgment plus the subsequent legislative interventions, in Zimbabwe dollars at the prevailing exchange rate on the date of payment.

**Respondent’s Case**

The Respondent through opposing papers filed was opposed to the granting of the application. The Respondent confirmed the applicant’s employment initially as a Projects Assistant in 2004. The Applicant however voluntarily resigned in 2005. He was engaged again as a Project Coordinator until his second resignation on 26 February, 2010.

In relation to the application before the court respondent urged the court to dismiss the application as being baseless in view of the fact that applicant had failed to prove his entitlements contractually. There had simply been no evidence tendered to support all the claims made. More importantly the applicant had failed to tender the basic document as proof of his earnings to support his claim. He had also failed to prove his entitlements to the other benefits he was claiming. The Respondent disputed that Applicant was entitled as of right to a vehicle and fuel allowance, smart phone allowance, camera allowance, airtime allowance and a laptop. The Respondent also emphasised that at law an employee is entitled to compensation for loss of any benefit i.e. contractually entitled to. It is also the position at law that in quantification proceedings the Applicant is enjoined to prove his/her claims. It was Respondent’s position, the Applicant in this case had clearly failed to discharge the onus on him to prove his claims. The court was thus being urged to dismiss the application.

**Parties Submissions**

On the date of hearing parties appeared and made oral submissions. Advocate Musarurwa for applicant addressed the court on two issues. Firstly, whether the applicant was entitled to damages for constructive dismissal. It was his submission the applicant claim was arising out of a judgment of this court per Honourable Murasi J which allowed Applicant’s appeal on the two issues of constructive dismissal and gratuity. That judgment remained extant. It was his submission the Applicant’s claim was based on a US$3 500.00 monthly salary. Although Applicant had failed to attach the actual salary slip as he could no longer locate the contract of employment, at the time of institution of proceedings, that amount had not been disputed by the respondent in its papers. It was his submission Respondent could also have produced evidence to counter applicant’s position. It was after all the obligation of the employer to have in its possession such information. Having so failed to counter the Applicant papers the benefit of doubt had to lie with the Applicant in this case. The court was urged to calculate the damages on the basis of US$3,500.00 gross salary minus any statutory deductions.

Advocate Musarurwa also addressed on the total period covered for the claim, which was a period of 3 years. It was his submission applicant at time of dismissal was occupying position of Senior Legal Officer. He however was unable to obtain a similar position in his endeavours to mitigate his losses. He only obtained a position as an intern where he was earning US$100.00. He urged the court to deduct the amounts earned for the period of employment from the final award to be made by the court. In regards the currency in which the damages were to be paid he submitted that on the basis of the Zambezi Gas judgment and the various legislative pronouncements the applicant damages were to be paid in ZWL at prevailing rate on the date of payment. This was due to the fact that there was according to Applicant no obligation existing prior to 2019. The amount owing to Applicant would assume the status of judgment debt only on the date of issuance of this court judgment.

Mr Chakanyuka, for the respondent, submitted that the law is clear that this court is not empowered to quantify and award damages on the basis of no evidence. To do so would amount to an error of law. He further submitted that it was incumbent upon the applicant as the claimant to adduce evidence in support of each and every claim made. He referred to Heywood vs GDC Hauliers SC 32/2013 in support of this position. Mr Chakanyuka also submitted that the salary claim of US$3,500.00 was disputed by respondent. He also dismissed the contention that there was a reverse onus on the Respondent as the employer to prove the salary. This position was clearly not supported at law. The correct position at law on the issue of onus/burden of proof in quantification was as captured in First Mutual Life v Muzivi 2007 (1) ZLR 32 at page 328 paragraph C – D. The Supreme Court had made it clear that the onus is on the employee to prove each and every claim made. In this case the Applicant had failed to prove the salary of US$3,500.00. It was his submission on that basis Applicant could not proceed with his claims.

Mr Chakanyuka also observed that the claim made ought to have in any event been based on net income not on the gross salary. He referred to Chiriseri vs Plan International for this proposition and Lovemore Madhuku in his book – Labour Law 2015 edition at p 257. He dissuaded the court from the invitation to engage in conjecture as to how much was Applicant’s net salary.

On the issue of mitigation, Mr Chakanyuka submitted that, Applicant having found alternative employment two months after his termination in February 2010 he was not entitled to 36 months as claimed. He also urged the court to dismiss Applicant’s submissions that he was only earning $150 as that submission was not supported by any evidence/proof. It was his contention that Applicant’s damages could thus only be for the two months i.e. February, March 2010.

On the aspect of currency in which the damages were to be paid, Mr Chakanyuka submitted that the obligation to pay arose following this court judgment in 2017. The obligation therefore clearly arose before February 2019. On the basis of the Zambezi Gas decision which was also referred by Applicant was supposed to be paid in Zimbabwe Dollar at the parity rate of (one)1 United States Dollar to (one)1 Zimbabwean Dollar. Reference was made to decision of the High Court in Cleopas Mukunguru vs Minister of Industry & Commerce HH 489/19.

In his reply Advocate Musarurwa insisted that the Respondent had not disputed in its papers that Applicant was being paid US$3 500.00 gross salary. The pay slip had also been tendered in the main appeal matter under reference LC/H/434/16. Whilst acceding to the point that damages have to be claimed on the basis of net pay, it was Advocate Musarurwa submission the court could still in its order reflect that the amount payable be subject to any statutory deductions. Advocate Musarurwa also emphasised that the Applicant had not obtained any suitable alternative employment. He had only been employed as an intern for US$150.00. He proposed to the court that it should grant the damages for constructive dismissal as prayed less $3 400.00 he had earned during his stint as an intern. The total amount to be awarded therefore was US$120 000.00. On the issue of the currency in which the damages were to be paid Mr Musarurwa reiterated that the obligation would only arise upon this court’s pronouncement of its judgment in the present matter. For that reason Section 22(e) of the Statutory Instrument 33 of 2019 was applicable. The court would therefore direct payment of the damages at the prevailing exchange rate on the date of payment.

The legal provisions applicable


The law is very clear as to where the onus lies in relation to a matter involving quantification of damages. In **First Mutual Life Assurance Limited** vs **Jackson Muzivi** 2007 (1) ZLR (S) CHEDA JA at page C – D stated as follows;

“The suggestion that the employer failed or refused to furnish the respondent with the appropriate salary scale suggests a wrong approach to the issue. It is the respondent who had the onus to prove his claims. If he was dismissed when he was in certain grade, it was for him to tell the court what salary scale applied to him at the time of his dismissal. He could not just claim that he was a certain grade whose salary scale he did not know. This would suggest that he did not know what he was claiming”.

The second major principle applicable is that it is incumbent upon an applicant in an application for damages to adduce evidence in support of his claim for damages. It follows that for a court to award damages in the absence of any evidence amounts to an error at law. The court was aptly referred to **Heywood Investments (Pvt) Ltd** vs. **Pharaoh Zakeyo SC** 32 of 2013. The third principle is that an employee who is wrongfully dismissed has a duty to mitigate his losses. The employee is entitled to claim damages from the date of wrongful termination to the date when he/she could reasonably be expected to find alternative employment. This position was laid in **Ambali** vs. **Bata Shoe Company Ltd** 1999 (1) ZLR 417 (SC) at pages 418 -9 as follows;

“…. I think it is important that this court should make it clear once and for all, that an employee who considers, whether rightfully or wrongfully, 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 find it, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably be expected to find alternative employment ……. But if an employee is wrongfully dismissed his duty to mitigate his loss arises immediately. If he is offered a good job the day after he is dismissed he must take it, or forfeit any claim for damages. If he is offered a good job only after he had been unemployed for six months, he must take it”.

The court has also been referred to the authority in **Dulys Holdings** vs. **Spanera** 2005 (1) ZLR 407 (SC) where the case in **Ambali** vs. **Bata Shoe Company Ltd** was quoted with approval by Supreme Court where it was held as follows;

“Mr Phillips argued on the approach adopted in Ambali case, supra, the respondent was entitled to his back pay and allowance from the date of dismissal by the Applicant to the date he found employment with KB Locksmith (the first job) and no more as his resignation from KB Locksmith on 8 March, 2011 was his own decision.


I find myself in agreement with submission by Mr Phillips that on the authority of Ambali case, supra, the respondent is entitled to damages calculated on the basis of his income from the date of dismissal to the date with the found employment” (highlighted and underlined for emphasis)

Application of the law to the facts

The Applicant is claiming for payment of US$126 000.00 as damages for constructive dismissal. The figure has been computed on the basis of 36 months’ salary. Applicant believes this is the period that would adequately compensate him for the loss following his constructive dismissal by the Respondent.

The Applicant contends in his application he was earning an amount of US$3 500.00 per month as gross salary. The Respondent disputed this amount. The Applicant has not attached any payslip or contract of employment to his application. The amount is therefore unsubstantiated before the court and on the basis of Heywood decision referred to supra the application stands to be dismissed. During the course of the hearing Applicant also made reference to the payslip having been filed in the main court record under LC/H/434/16. This approach is clearly unprocedural. It was incumbent on Applicant to adduce evidence of his salary before the court. It is not for the court to be requested to search through previous records for the evidence on his behalf.

The court however with a view to ensure finality of this matter did request for the record under LC/H/434/126 from the Archives. The court established that indeed there was a copy of a salary slip attached to Applicant papers on page 87. The salary slip is for January 2010 and it shows a basic salary of US$3 500.00 with a net salary of $2 421.87.

The court however agrees totally with the Respondent’s submission that Applicant could only compute his claim based on net income and not gross income. The record of proceedings under reference LC/H/434/16 clearly shows Applicant net income. It is the position of the law that an application falls or stands on the basis of the Founding Affidavit. It is clear that Applicant in this case having premised his claim on the basis of a gross salary and not the net salary, his application clearly stands to fall. It is not for this court to make a case for him, he ought to have pursued the issue of his salary slip before filing his application. It is also clear that the basis of any claim for damages is the salary slip that reflects the correct amount of applicant’s monthly salary that one was earning see Arda VS Mvududu SC58/15. The Applicant in this case clearly has failed to establish/prove his correct monthly salary before the court. His application ought to fail on that basis alone.

Even if the court is wrong in taking this approach there is yet a further hurdle. It is clear from the submissions made that Applicant’s contract was terminated on the 11th of February, 2010. According to the Curriculum Vitae attached to his papers he found alternative employment sometime in April 2010 with B Matanga Legal Practitioners. He submits that he was only employed as an intern and was not earning more than US$150.00. The Applicant has not taken the court into his confidence by attaching the contract of employment with B Matanga Legal Practitioners. Neither has he attached any proof to show he was earning. The court in the absence of such evidence would not be in a position to assess the exact amount of damages he would be entitled to as the court is required to deduct from the potential damages any income earned during the period of mitigation. The court also cannot ignore the submissions made by Applicant in regards the income earned at B. Matanga Legal Practitioners by just awarding damages without factoring that income earned as to do that would result in Applicant double dipping. The Applicant has therefore once again failed to adduce evidence so as to allow this court to properly quantify his damages. The onus was clearly on him to substantiate the statements made that he did obtain alternative employment and to prove the income earned during mitigation.

It must follow therefore that the Applicant having failed to tender any proof in support of his claim of US$3,500 salary there is no proof to justify the whole claim of 36 months’ salary. The Applicant had also failed to tender any evidence to support the claim that he obtained alternative employment and the amount earned during that period. In the absence of such critical proof, it must follow that his application stands to be dismissed.

It is accordingly ordered as follows;

The application be and is hereby dismissed with costs.

Chirovedzingirai Group of Lawyers, applicant’s legal practitioners
Mtetwa & Nyambirai, respondent’s legal practitioners
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