Wadzanai Zimondi v Secretary, Home Affairs and Cultural Heritage & Anor

### Preamble
IN THE LABOUR OF ZIMBABWE
JUDGMENT NO
LC/39/24 CASE
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IN THE LABOUR OF ZIMBABWE

HELD AT HARARE 2ND FEBRUARY 2024 IN THE MATTER BETWEEN:-

JUDGMENT NO LC/39/24 CASE NO. LC/H/979/23

WADZANAI ZIMONDI	APPLICANT

AND

SECRETARY, HOME AFFAIRS AND

CULTURAL HERITAGE	FIRST RESPONDENT

SECRETARY, PUBLIC SERVICE COMMISSION	SECOND RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Ms. H. Madzongwe

For Respondents	Mr. P. Chibanda

MURASI J:,

This is an application for quantification of damages. This Court, in an Order dated 23 May 2022, determined that Applicant be reinstated into her former position without loss of salary and benefits. Respondents declined to reinstate her. Hence the present application.

At the commencement of the proceedings, Ms. Madzongwe informed the Court that Applicant accepted the figures which were given by the Respondents as being her salary for the purpose of calculating the damages due to her. She stated that the figures were USD 300-00 and ZWL 245 000-00 per month. She further submitted that Applicant was of the view that a period of 24 months to be awarded as damages would be appropriate in the circumstances. She stated that Applicant had tried to find alternative employment but had failed to do so due to the prevailing economic situation in the country. She added that, as shown in paragraph 12 of the Founding Affidavit, she had ‘dropped’ her curriculum vitae with various companies but had been unable to get any employment.

Ms. Madzongwe further submitted that Applicant was forty-seven (47) years of age and held a Diploma in Marketing but this had not assisted her in finding alternative employment. She also stated that Applicant was surviving with the support of family members. She also stated that

Applicant was also entitled to cash in lieu of leave in the sum of USD 900-00 and ZWL 735 000-00 respectively.

In response, Mr. Chibanda stated that the period of 24 months stated by the Applicant not realistic. He argued that a period of 6 months was sufficient for the Applicant to have found alternative employment. He however conceded that Applicant was entitled to be paid for the period between the date of dismissal and the date of the Court Order. He also did not dispute the figures given by Ms. Madzongwe as being the figures that the Respondents had proposed as being the monthly salary due to the Applicant.

ANALYSIS

In Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S), it was stated as follows:

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach. But the employee must mitigate his loss. He must look for and accept any reasonable offer of alternative employment. He cannot just do nothing.. If he fails to take other employment when it would have been reasonable to do so, a deduction will be made in respect of the remuneration he would have earned from the substituted employment.”

Damages are meant to put the innocent party in the position he would have occupied had the contract been performed. Put differently, damages in lieu of reinstatement are meant to put the employee in the position he or she would have occupied had the employer opted for reinstatement. The fact that the economic climate is unfavourable for job-seekers is now known in the country. It is a fact that once one loses employment, it becomes difficult to find alternative employment. However such a situation cannot be said to exist in perpetuity. Applicant was dismissed in 2021. By the time this application was filed, it was stated that she was still to obtain alternative employment. What then would be a reasonable period for a person in her position to find alternative employment? She is 47 years and holds a Diploma in Marketing. She has working experience. She is no longer youthful. It is my view that a period of twenty (20) months would be sufficient in the circumstances. The period includes the period from the date of dismissal to date of the order of reinstatement and also the period in which she was supposed to obtain alternative employment.

The principle set out in Leopard Rock Hotel Co (Pvt) Ltd v van Beek 2000 (1) ZLR 251 (S) is apposite. It was stated in that case that ‘back pay’ is a concept associated with reinstatement. Where an employee succeeds if proving wrongful dismissal, but is not reinstated, that employee will be entitled to ‘damages’, a major element of which will be ‘back pay’. This would mean that ‘back pay’ would be limited to the period of time from the date of wrongful dismissal to a date by which the employee could, with reasonable diligence, have obtained alternative employment.

I should also point out that Mr. Chibanda did not contest the figures given by Applicant’s legal practitioner as Applicant’s claim in respect of cash in lieu of leave.

The Court brought to Mr. Chibanda’s attention that the portion of the salary designated in United States Dollars would have to be paid in that currency to the Applicant and NOT at the interbank.

The computation will give the following figures:

20 months at USD 300-00 per month = USD 6000-00

20 months at ZWL 245 000-00 per month= ZWL 4 900 000-00 Cash in lieu of leave- 90 days = USD 900-00 and ZWL 735 000-00. The Court makes the following Order:

The application is hereby granted.

First Respondent is hereby ordered to pay to Applicant the following amounts;

USD $6000-00 as damages in lieu of reinstatement for a period of 20 months.

ZWL 4 900 000-00 as damages in lieu of reinstatement for a period of 20 months.

USD $900-00 as cash in lieu of leave.

ZWL 735 000-00 as cash in lieu of leave.

The above stated amounts shall be paid within 60 days from the date of this Order.

Respondents to meet the Applicant’s costs, the one paying the other to be absolved.

Applicant’s legal practitioners

Civil Division of the Attorney Generals’ Office-	Respondents’ legal practitioners