Telecel Zimbabwe (Private) Limited v Norman Dumba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/523/2014
HELD AT HARARE ON 11th JUNE, 2012
CASE NO. LC/H/348/2011
AND 1ST AUGUST, 2014
JUDGMENT NO. LC/H/523/2014
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IN THE LABOUR COURT OF ZIMBABWE   JUDGMENT NO. LC/H/523/2014

HELD AT HARARE ON 11th JUNE, 2012   CASE NO. LC/H/348/2011

AND 1ST AUGUST, 2014

AND 8TH SEPTEMBER, 2014

In the matter between:-

TELECEL ZIMBABWE P/L				-	Appellant

And

NORMAN DUMBA						-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Ms A. Vere (Legal Director)

For Respondent 	-	Mr J. Mambara (Legal Practitioner)

CHIVIZHE J,

The matter was placed before me as an appeal and cross-appeal against an arbitral award handed down by the Hon. Gabilo on 3rd June, 2011.  The arbitral award was based on a quantification of damages in lieu of reinstatement pursuant to a previous award.  For convenience the employer will be referred to as Appellant and employee the Respondent.  The material background facts to the matter are as follows;

The Respondent was employed by the Appellant as a Regional Site Acquisition Supervisor.  The record shows that the Respondent was head hunted by the Appellant through the internet.  Prior to joining Appellant he was employed in Uganda.  He relocated to Zimbabwe when he got employment with the Appellant.  The Respondent’s contract of employment commenced on 10th of December 2009. Less than four months into the job the Respondent was dismissed from employment by the Appellant.  The matter was referred to the Labour Officer and consequently to an Arbitrator.  The Arbitrator handed down the first award in favour of the Respondent.  The Appellant noted an appeal against the award in the Labour Court.  On the 24th February 2011 the appeal was dismissed by the Labour Court for want of prosecution on the basis that the Appellant’s legal representatives were not in attendance on the day.  The Appellant lodged an application for rescission of the default judgment entered against it.  The application was opposed by the Respondent.  Whilst the matter was still pending the Respondent then approached the Arbitrator for quantification of damages.

The Arbitrator despite an objection by the Appellant to the procedure proceeded to quantify damages.  He consequently handed down an award on 3rd July 2011, the operative part of which reads as follows;

“Below is the breakdown of the quantification of damages in lieu of re-instatement.

Gross salary @ US$2059.00 x 30 months		= US$61 770.00

Educational allowances @ 20% of $2 059

x 30 months						= US$12 354.20

Fuel allowance @ 240 litres @ $1.30

x 30 months						= US$ 9 360.00

Cash in lieu of leave 20 days		      = US$ 3 818.00

Motor vehicle benefit

(Mazda BT50 single cab)300 x 30 months		 = US$ 9 000.00

Care hire claim to paid at the rate of

invoice submitted 					= US$ 0 000.00

Airtime allowances of 600 minutes

@ $90 per month x 30 months				= US$ 2 700.00

Canteen allowances @ US$40.70 x 30 months	 =US$ 1 221.00

Punitive damages for anguish and trauma

suffered by claimant and for losing his

job in Uganda						 =US$10 000.00

Total damages payable					 =US$102123.00

Plus interest at prescribed rate.

The Appellant was aggrieved and noted an appeal against the arbitral award. The Appellant’s grounds are rather lengthy and cumbersome. They can be summarized as follows;

1.	 The Honorable arbitrator erred in calculation of

educational and cash-in-lieu of leave.

2. 	The Arbitrator failed to apply the correct legal principle applicable in quantification of damages for loss of employment.

3. 	The Arbitrator erred in awarding allowances on the basis of  a period of five years in the absence of any evidence led to justify the claims made.

4. 	The Arbitrator wrongly awarded the Respondent the sum of US$10 000.00 as punitive damages for anguish and trauma suffered by claimant for losing his job in Uganda.

5. 	He erred in granting the cumulative order of US$ 102,123.00 as damages for unlawful dismissal without factual basis.

The Respondent also noted his cross-appeal against the same award on the following grounds of appeal;

“GROUNDS OF APPEAL

The Honourable Arbitrator grossly erred by not quantifying the claim for car hire when it was his duty to quantify and not leave it to the parties to settle.

The Honourable Arbitrator grossly erred by omitting to add an amount of $9 000.00 under the motor vehicle benefit. The said amount was left out.

The Arbitrator erred by calculating educational allowance for 30 months instead of 8 terms.

The Honourable Arbitrator grossly erred by calculating cash in lieu of leave at a rate of $4 200 instead of $2 059.00”

I find it convenient to address initially the Appellant’s grounds of appeal.

My initial observation is that the Arbitrator grossly erred in the quantification process in that he failed to apply the legal principles relevant to the quantification of damages for loss of employment which principles have been canvassed in a plethora of cases by the Supreme Court over the years.  See for example Madyara v Globe and Phoenix Industries (Pvt) Ltd 2002 (2) ZLR 269(S) Chiriseri and Others vs. Plan International 2002 (2) ZLR 261(S) and Duly Holdings vs. Spanera 2005 (1) ZLR 40(S).

In the second ground of appeal the Appellant outline how the Arbitrator erred by relying on irrelevant consideration to arrive at the award. The Arbitrator in his award seemed to penalize the Appellant for failure to negotiate with the Respondent. The Arbitrator also wrongly came to the conclusion that the Appellant had a legal obligation to assist the Respondent to secure alternative employment. The Arbitrator also seemed to find fault the Appellant’s actions in seeking to rescind the Labour Court default judgment. This was clearly irrelevant as that matter was before the Labour Court and not before him. The Appellant also raised the point that the Arbitrator applied wrong principles in calculating damages for wrongful dismissal. The Respondent’s counter position on that point was that the Arbitrator properly arrived at the award considering the background circumstances prevailing in the matter.

It is clear that the Arbitrator in arriving at quantum of 30 months in damages for loss of earnings indeed applied the wrong principles in the quantification of damages. As correctly noted by the Appellant, he failed to take into account that damages for wrongful dismissal are calculated on the basis of length of time calculated from the date of dismissal which it would reasonably take the Respondent to find alternative employment. The principle was enunciated in Ambali vs. Bata Shoe Company Ltd 1999 ZLR (1) 417 where 419 it was said

“An employee who considers whether rightly or wrongly 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, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could have reasonable have expected to find alternative employment.”

It was also contended on behalf of the Appellant that the gross salary education allowances fuel allowances, motor vehicles benefit, airtime allowances and canteen allowances were all wrongly awarded on the basis of five years. It was the Appellant’s further submission that taking into account Appellant qualification and experience it would have taken Respondent 6 months to obtain alternative employment.

The Arbitrator in his award failed to lay a clear basis for the award of the allowances for five years. The Arbitrator in determining quantum of allowances relied on the same consideration for damages for loss of earnings. He also seemed to suggest that the Appellant having head hunted the Respondent should have assisted him to find alternative employment which clearly is wrong as the Appellant had no obligation to help the Respondent to obtain alternative employment. The Arbitrator was required to receive evidence of how long it would have taken for Respondent to obtain alternative employment. The Arbitrator would thereafter assess the damages in lieu of reinstatement which would include the allowances. An assessment of damages is after all a trial cause. No assessment can be done on papers.

The Arbitrator also in my view wrongly awarded the sum of $10 000.00 as punitive damages for ‘anguish and trauma’. Firstly the Arbitrator failed to indicate clearly the basis for the award of $10 000.00 as damages. He appears to have plucked the figure.

Secondly he awarded the damages on the basis of ‘anguish and trauma’ suffered by Respondent for losing his job in Uganda. It is trite that these damages which are delictual in nature are normally claimable under ‘acto legis acqueline’.  They are not claimable under damages for wrongful dismissal. See in this respect Gauntlet Security Services P/L vs. Leonard SC 88/97.

There is no doubt that on the basis of the Appellant’s submissions the Appellant has raised a sufficient basis for this court to interfere with the award. The award clearly ought to be set aside.

However I must also address the cross-appeal noted. The Respondent in his cross-appeal also raises errors in the quantification process. The Respondent alleges that the Arbitrator erred by omitting in the award his claim for car-hire. The Respondent also alleges that the Arbitrator omitted an amount of $9 000.00 under motor-vehicle benefit. The Respondent under the third and fourth grounds alleges errors in calculation of educational allowances (which ought to have been for 8 terms not 30 months) and calculation of cash-in-lieu of leave (which ought to have been calculated at the rate of US $2 059.00 not US$4 200.00.)

The Appellant in its response to the cross-appeal contests the first two grounds on the basis that the Arbitrator correctly left out the claims for car-hire and motor-vehicle benefits. The Appellant however conceded that under the last two grounds the Arbitrator indeed erred in his calculation of educational allowance and the cash-in-lieu of leave. On this basis clearly the cross appeal also partially succeeds.

I am satisfied on the basis of the submissions made and evidence in the record that the Arbitrator clearly misdirected himself on the facts and the law in quantification proceedings. There is no doubt that the arbitral award clearly stands to be quashed. Having set it aside the court has, in my view, two options; one is to remit the matter for a hearing de novo before the same arbitrator or by this court hearing evidence. Although I have considered the option to remit to the court a quo for the Arbitrator to conduct a fresh hearing, I am however cognisant of the need to bring to finality this case which has been unduly delayed. A remittal to the Arbitrator considering the administrative channels that need to be followed might in my view further delay the proceeding. Accordingly the court has opted to take the latter approach by receiving evidence on the damages claims. The Registrar shall be directed to set down the matter within 14 days of the date of this order on notice to both parties. The parties shall however file heads of arguments at least five days before the date of set down

It is accordingly ordered as follows;

The appeal is upheld.

The cross-appeal is also upheld.

The arbitral award handed down on the 3rd of June, 2011 is hereby set aside.

The Registrar is directed to set down the matter for hearing of evidence on the damages claimed within 14 days of the date of this order.

The parties shall file heads at least five days before the set down date.

Costs shall be in the cause.

J. Mambara & Partners – Respondent’s legal practitioners