Tione Manyaya v Innscor Africa Ltd t/a Bakers Inn Bakeries

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 17 OCTOBER, 2023
JUDGMENT NO. LC/H/68/24
CASE NO. LC/H/577/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 17 OCTOBER, 2023

AND 26 FEBRUARY 2024

JUDGMENT NO. LC/H/68/24 CASE NO. LC/H/577/23

TIONE MANYAYA	APPLICANT

Versus

INNSCOR AFRICA LTD T/A BAKERS INN BAKERIES	RESPONDENT

Before the Honourable Kudya J;

For the Applicant	- T. Zenda (Legal Practitioner)

For the Respondent	- S. Mamimine and S. Njerere (Legal Practitioners)

KUDYA J:

This is an application for the quantification of damages due to the applicant employee following the success of his review application in a labor dispute pitting him and the respondent employer.

Applicant is seeking that he be awarded the following;

24 months arrear salary from June 2021 to May 2023 at USD $361, 56 per month totalling USD $8 677, 44.

Damages for loss of employment half salary for 12 years worked total USD$2 169, 36.

3 months salary leave days. He says he never went on leave for the duration of his employment. Total USD $1 084, 68.

3 months’ notice pay total USD $1 084, 68.

3% of his wages for 12 years’ per the CBA. Total USD $260, 32

24 months transport allowance at USD$35 per month. Total USD $840. He says he was not residing at company premises so he is entitled to the above transport allowance.

24 months housing allowance at $30 per month since he was not provided with accommodation. Total USD $720.

Food allowances at US $12 per day for 20 days a month × 24 months. Total USD $ 5 760.00

Accommodation allowance at $20 per night total USD $9 600-00. He says he was working out of Chinhoyi town so is entitled to accommodation allowances.

USD $200 per year dividend payable in May and December of each year so total for 2 years USD $400.

12 loaves of bread per month by 24 moths total 528 loaves of bread.

2 green bars of soap per month total 48 bars.

50 kg grocery hampers per year for 2 years that would be 2 hampers.

In the ultimate his claim is for USD $ 31 319, 60 and 528 loaves of bread, 48 green bars and 2 × 50 kg grocery hampers. He also claims that costs be awarded on a legal practitioner client scale for the reason that respondent has not been negotiating in good faith and that it has caused him to incur expenses by mounting a quantification application to get what is due to him.

In response to the application the respondent maintained that indeed reinstatement was not possible and that applicant was entitled to damages. The main opposition to the application is on the quantum sought by the applicant and the currency in which he seeks to be paid which respondent says is not supported by the law as set out in the applicant’s contract entitlement and the CBAs for the Food and Allied Industries (Baking Sector). It hastens to mention that damages for loss of employment are governed by Section 12(c) of the Labor Amendment Act.

In respect of each claim head the respondent maintains the following;

Arrear salary

It is the respondent’s view that the applicant should be paid what was due to him as per the CBA. In particular it states that from June 2021 to April 2022 the wages were wholly denominated in ZWL and that is what applicant should be paid from May 2022 up to 1 May 2023 payment was USD payable at exchange rate of 21st of every month then in ZWL. In May 2023 he would have been paid 27 % of his basic pay wholly in US.

To that extent the respondent filed with the court the recalculated arrear salary as per Annexure F1 filed of record. Respondent also hastened to mention that it is prepared to pay interest at the prescribed rate. It thus put the total calculus of applicant’s arrear salary and housing allowance at ZWL $3 670 570, 89 and USD $97, 26.

Damages for loss of employment Respondent in its papers does not seem to take issue with the principle of half salary for 12 months but maintains that the calculus should also be as for back pay discussed above.

Leave days

Respondent contends that applicant accrued 65, 33 leave days as demonstrated by the schedule of leave days for its employees. It contends therefore that applicant should be paid for 65, 33 days applying the rates applicable in the attached CBAs.

Notice pay

Respondent states that applicant’s services were not terminated on notice so he cannot claim termination on notice. It mentions that parties agreed on cut off date of 31 May 2023 so there should not be a payment due under the head of termination notice.

Service pay

Respondent says applicant’s service spanned 1 December 2011 to 17 March 2023 totalling 11 years 5 months so the formula to be used should be 27% USD and balance in ZWL at auction rate of 13 June 2023 giving total of $9 007 781,20 and USD$557,25.

Transport allowance

Respondent says applicant is not entitled to this allowance except for the housing allowance. It reasons that for the claimed period applicant was not giving it any service so he cannot be paid the transport allowance.

Housing allowance

Respondent concedes this allowance but hastens to mention that it should be as per the CBAs filed of record. It states that it factors that allowance on F1 and its figure is ZWL$ 285 959, 80.

Food and Accommodation

These are subsistence allowances only paid to a person working away from his duty station. Applicant was not working as such so he has no entitlement to such.

Dividends

Respondent says applicant is not entitled to any dividend as he was not a respondent shareholder.

Continuous service

This is not part of terminal benefits. It is only paid to qualifying employees monthly for seniority.

Soap, bread and hampers

Respondent says this benefit was discretionary and not contractual so applicant cannot claim that.

In the ultimate respondent prays that applicant be awarded damages as appears on its calculations based on the CBAs applicable to the matter.

It is settled law that damages can only be granted on the basis of evidence adduced. They should not be plucked from the air. See Heywood Investments v Zakeyo SC 32-13. In the case at hand applicant reasons that he should be paid using the rate of what current employees of the respondent are getting that is USD 361, 56 per month. A reading of the law admits of no doubt that the respondent’s duty is to put the employee in the position he would have been had it not been for the job loss. See Ambali v Bata Shoe Company 1999(1) ZLR 417.

It therefore stands to reason that applicant’s entitlement is what he would have received as per the CBAs at the time of when each amount fell dues. It is patently clear from the CBAs that for the entire period claimed by the applicant except for May 2023 his entitlement would have been ZWL completely and USD converted to ZWL at bank rate prevailing at the tenure of each CBA. The court is therefore persuaded that the calculus should be as reasoned by the respondent. The formula which applicant is asking the court to adapt is in sync with plucking figures from the air which is frowned upon by the law. For completions of record each of the claims is addressed below.

Arrear salary and damages

The court is satisfied that the calculation made by the respondent using the CBA is in place at the time is what accords with the law.

Notice pay

A reading of papers on file demonstrates clearly that the parties had a cut off date of 31 May 2023. To that extent the claim for notice pay is without foundation and should be dismissed.

Service pay

The reasoning stated on arrear salary and damages applies to this heading with equal force. The calculus by the respondent under that head thus accords with what is in sync with the law.

Transport allowance

This is an allowance payable to an employee to undertake the employer’s job. In the case at hand respondent reasons correctly that no such service was being rendered so the allowance cannot be claimed.

Housing allowance

The recalculation by the respondent is in sync with the law as it is in line with the CBAs.

Food and Accommodation

Respondent reasons correctly that these are allowance for offsite deployment hence not claimable as damages. The claim should thus fail.

Dividends

Applicant has not laid out a basis for his entitlement of such. The claim should thus fail. In fact the reasoning by the respondent that he is not a shareholder and this has no entitlement is apt.

Continuous service

The court agrees that as per the CBAs this is not an entitlement as part of damages. The claim should also fall away.

Soap, Bread, Hampers

The law is clear that only contractual benefits are due to an employee as they are claimable as of right. See Magodora v Care International SC-24-14. The discretionary benefits from the very use of the term remain within the discretion of the employer hence are not claimable as damages. The claims for bread, soap and hampers being without foundation should also fail.

In the ultimate the quantification application succeeds to the following effect. Respondent to pay applicant;

Back pay June 2021 to May 2023 total ZWL$3 670 578, 89 and USD$97, 62.

65,33 leave days total $5 431 564, 65 ZWL

Damages for loss of employment $90 007 781, 20 and USD$557, 25 Sum Total

ZWL$18 109 924, 74 and USD 65 487.

The rest of the claims are dismissed for lack of merit.

Interest- Respondent pays at prescribed rate of payment to date.

Costs

No good case for punitive costs has been made out by applicant (see insert) Matabe vs Mahembe.

In the result each party should bear its own costs.

IT IS ORDERED as above.

Hungwe and Partners – Applicant legal practitioners

Honey and Blanckenberg- Respondent legal practitioners