Zimbabwe Broadcasting Corporation (Pvt) Ltd v Benania Shumba

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/66/25
HARARE, 14 FEBRUARY 2025 AND
CASE NO LC/H/1274/24
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 14 FEBRUARY 2025 AND 25 FEBRUARY 2025

ZIMBABWE BROADCASTING CORPORATION (PVT) LTD

BENANIA SHUMBA

JUDGMENT NO LC/H/66/25

CASE NO LC/H/1274/24

APPLICANT

RESPONDENT

Before the Honourable G. Musariri Judge:

For Applicant

For Respondent

- K. Kachambwa, Advocate

- T. Kabuya, Attorney

MUSARIRI, J:

Applicant applied to this Court for the reinstatement of an appeal which was deemed abandoned and dismissed. The application is provided for by Rule 46 of the Labour Court Rules, 2017. Respondents opposed the application. It is common cause that the appeal was dismissed for failure by applicant to file its heads of argument timeously. However respondent does not take issue with applicant’s explanation for the default. The matter therefore hinges on the prospects of success of the abandoned appeal. This Court considers that the matter turns on the narrow issue of mitigation of damages. Applicant’s heads of argument dealt with the issue as follows,

“4.1 The labour officer erred in concluding that the respondent was entitled to damages and allowances calculated for the entire remaining period of the contract extending from 5 September 2019 to 31 August 2023 in circumstances where respondent had a duty to mitigate her loss.

4.3 No evidence was tendered and none exists to show that the Respondent exercised its obligation to mitigate its loss. It stands to reason that where an employee has not exercised this

2 LC/H/66/2025 LC/H/1274/24

duty the consequence of such failure cannot be exercised (sic) upon the employer in the calculation of damages, in fact by operation of law the measure of damages is the period within

which a wrongfully dismissed employee would have reasonably been expected to find alternative employment, such period reckoned from the date of dismissal.”

Respondent’s heads of argument countered thus,

“1.16 Just as has been argued above, the finding of the arbitrator that the Respondent was entitled to damages and allowances calculated for the remaining period of the contract extending from 5 September 2019 to 31 August 2023. The correct principle with regards to damages is to award the affected employee the amount of wages or salary the employee would have earned if not for the premature termination of the contract. In principle this is done by calculating the salary and allowances due to the employee for the unexpired period of the contract of employment. This is what was done in this case hence there is no basis for the appeal.”

ANALYSIS

Applicant correctly relied on the principle that a dismissed employee has a duty to mitigate

his loss/damages even if he was wrongfully dismissed. The principle is set out in the case of

Ambali v Bata

1999(1) ZLR 417(S)

Per McNally JA at 418 G – 419A

“It is important that this court should make it clear, once and for all, that an employee who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit around and do nothing. Her 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 reasonably have expected to find alternative employment.”

Respondent’s argument that there is no duty to mitigate in the case of a fixed term contract

flies in the face of the controlling precedents. Therefore it is this Court’s conclusion that the abandoned appeal bears reasonable prospects of success on the merits. Thus it isin the interests of justice that the appeal be reinstated.

3 LC/H/66/2025 LC/H/1274/24

Wherefore it is ordered that

1. The application for the reinstatement of the appeal referenced LCH/1066/24

be and is hereby granted;

2. Applicant shall file its heads of argument in the appeal within ten (10) days of this

order; and

3. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E