Akim Oscar Sithole v George Padule (N.O) & Nanyi Mineral Resources (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/102/25
HARARE, 30 SEPTEMBER 2024
AND 10TH MARCH, 2025
CASE NO. LC/H/729/24
---------


IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/102/25 HARARE, 30 SEPTEMBER 2024

AND 10TH MARCH, 2025	CASE NO. LC/H/729/24

In the matter between: -

AKIM OSCAR SITHOLE	APPLICANT

And

GEORGE PADULE (N.O)	1ST RESPONDENT

NANYI MINERAL RESOURCES (PVT)LTD	2ND RESPONDENT

Before Honourable Chivizhe, J:

For Applicant: Mr S Mandiwanza (Legal Practitioner) For Respondent: Mr T Mutonhori (Legal Practitioner)

CHIVIZHE, J:

The application is for quantification of damages in lieu of reinstatement. The application is filed pursuant to a court order granted by this court on 10th November, 2023 with a corrigendum issued on the 4 April 2024. The application is opposed by the 2nd Respondent.

APPLICANT POSITION

The Applicant through the application is claiming;

BACKPAY

To cover the period from January 2023 to April 2024 at a salary rate of USD$500 therefore 16months x 500 = USD$8000

OUSTANDING ALLOWANCES

To cover the same period as in (1) above 16 months x 2000 Rands = 32 000ZAR

VACATION LEAVE DAYS

2 days per month x 16 months x USD$19 daily rate = USD$608

OVERTIME

Calculated at 4 hours per day x 16 months x USD$9.50 (half day’s rate)

DAMAGES IN LIEU OF REINSTATEMENT

18 Months x USD$500 = USD$9000

In his draft order the Applicant prays for the following: “IT IS HEREBY ORDERED THAT:

Respondent pays damages of the sum of USD 37 608. 00 or ZIG equivalent to the Applicant.

Respondent shall pay costs on a higher scale”

RESPONDENTS POSITION

The application is opposed by the 2nd Respondent on the basis of the following averments made in the Opposing Affidavit. That the parties following the issuance of the order of this court had started negotiating. Whilst the process was ongoing Applicant then escalated proceedings to this court. The 2nd Respondent contends that negotiations were done on a purely without prejudice basis cannot the discussions cannot therefore be included in these proceedings. That it is conceded that Applicant was earning USD$500 salary per month. It is however disputed that he was entitled to a further allowance of $2000 in Rand currency. The Applicant has been put to the strictest proof of the same. The 2nd Respondent also contends that Applicant is not entitled to leave days as he had exhausted these.

The 2nd Respondent also submits that the Applicant is not entitled to any overtime as there was no consensus between the parties on overtime. The Applicant is again put to the strictest proof of same. On damages for loss of employment the 2nd Respondent contends that the Applicant has not placed before the court any proof that he attempted to mitigate his damages. With regards to Applicant submission that due to the harsh economic environment prevailing at the time of termination of contract he was unable to mitigate his loss the 1st Respondent contends that Applicant had managed to obtain employment with 2nd Respondent in August 2021 under the same harsh economic environment. The 2nd Respondent contends

that he ought therefore to have found alternative employment soon after termination of his contract with 2nd Respondent in January 2023.

The 2nd Respondent also contends that the Applicant has failed to provide critical information on his educational qualifications. He has also failed to disclose what experience he has and in what field. No evidence of the earnings he got in the vending business has been placed before the court. On this basis the 2nd Respondent position is that 18 months salary in damages in lieu of reinstatement is unrealistic, insincere and unsustainable. The claim is also not supported by any precedence. The Respondent prays for the dismissal of the application with costs.

PARTIES ORAL SUBMISSIONS

Mr Mandiwanza, for Applicant made submissions to counter the 2nd Respondent submissions in the Notice of Respondent as well as the Heads of Argument filed belatedly by the 2nd Respondent following an order by the court. He submitted that the parties were ad idem on the issue of the salary-rate which is to be used to calculate the damages. On the issue of outstanding leave days he submitted that the averments by the 2nd Respondent that Applicant had exhausted his leave days could not be accepted by the court in the absence of any evidence tendered. This was in view of the fact that the 2nd Respondent is ordinarily the custodian of all records under the provision the Labour Act (Cap 28:01).

The Applicant position was that it was the 2nd Respondent who had the onus to produce copies of the contract of employment, salary slips, proof of overtime days and the dates, leave schedules or even leave forms filled in by the Applicant. To the 2nd Respondent averment that the allowances were included in the monthly salary of $500 USD, Mr Mandiwanza urged the court to disregard the averment in view of the absence of any evidence to support the averment made. The court was urged instead to adopt the evidence as tendered by the Applicant in support of the claim which was attached as Annexure “E” to the application.

Mr. Mandiwanza also urged the court to dismiss the 2nd Respondents submission that the allowances were factored in the USD$500 salary in view of the evidence tendered by the Applicant “Annexure D” to Applicant papers which evidence would tend to show that he was receiving USD$500 as a salary not salary plus allowances.

In regards the 2nd Respondent submission that Applicant had failed to mitigate his losses Mr. Mandiwanza submitted, that, contrary to 2nd Respondent position, the Applicant had indeed

mitigated his losses by engaging in the fruit vending business. The Applicant realized an average of USD$100 per month for the period of 18 months. With reference to the issue of overtime it was Applicant position that he worked overtime daily from 5am to 6pm in the evening from Sunday to Sunday. He was however unable to produce the proof in the form of time logs as these were obtainable from a logging machine in which all employees log when going in and coming out daily. It was also Appellant submission that it was his duty to complete schedules for the other employee but not for himself. This was because he had reached an understanding with the Directors of the 2nd Respondent as they had a relationship which was based on friendship rather than on an employer/employee relationship. This was in light of the help he had rendered to them initially when they were setting up their business in Zimbabwe. They however had a fall-out when the trumped-up charges were brought against him which had ultimately resulted in the termination of the employment.

Mr. Mandiwanza also requested for an amendment to the claim for overtime. He had initially made a claim for overtime for USD$18240. He was requesting for deletion of the figure and substitution with USD$ 16320 as he realized that he had calculated using a half days’ rate of USD$9.50 instead of USD$8.50. Lastly Mr. Mandiwanza submitted that it had to be placed on the record that the Applicant had no formal educational qualifications he however had experience in management especially in the sector where he had been working i.e. in the mining sector.

Mr. Mutonhori prefaced his submission in response, with a statement on the position of law that an application stands or falls on the basis of the Founding Affidavit. He further submitted that the proceedings being quantification proceedings the Applicant had the onus to discharge in these proceedings. Applicant was however clearly seeking to shift the onus on to the 2nd Respondent. The application was the Applicant’s case not the 2nd Respondent’s case so Applicant had to discharge the onus on him.

On the substantive issues he reiterated that the position of law was clear so it was Applicant duty to prove each and every claim made. With regards to the overtime claim he submitted that the claim, could not, in the absence of any evidence, be justified. Overtime was after all a species of a contract; it therefore must be approved by the employer first before it is undertaken.

No evidence however had been placed of that nature before the court. The principle had been laid in numerous authorities including Varukanyi vs TM Supermarket LC/H/37/18 that in the absent of agreement a claim of overtime could not be sustained.

Mr. Mutonhori also urged the court to note that overtime as a claim had, in any event, not been specifically pleaded in Applicant papers. It was therefore not shown as to when and under what the circumstances the overtime was undertaken. On Leave days, the 2nd Respondent was standing by submissions made that the leave days were exhausted. Upon enquiry from the court as why no evidence had been placed before the court by the 2nd Respondent in view of the position taken by it, Mr. Mutonhori submitted that his client was unable to locate most documents due to internal issues. He submitted that still it was not the position of the law that an employer is required to tender the documents that he is ordinarily required to keep by the law. The law was clear that the onus in cases of this nature was on the employee. The Applicant still had the onus to prove each and every claim. The court was also urged to draw an inference against the Applicant on the basis that he had failed to explain why he was not utilizing the logging system just as all the other employees.

On the issue of allowances, Mt Mutonhori submitted that the contract of employment even though unwritten did not include the payment of the allowances in Rands as suggested by Applicant. He urged the court to disregard the document attached as ‘Annexure E’ as it was clearly not a valid document. It did not, for example, disclose the relationship between the payee with the 2nd Respondent. It also did not indicate whether the purported R2000 came from any one of the 2nd Respondent Directors. The name of the payee was also not known to any of the Directors of 2nd Respondent. Upon the court enquiry with the Applicant as to who was the payee it was established that the name belonged to his wife whom according to him was receiving the R2000 allowance monthly on his behalf from the employer.

Upon this clarification by the applicant, Mr Mutonhori submitted that it was impossible for the 2nd Respondent to have paid Applicant through his wife. A closer look at the document also showed that it reflected the word ‘salary’ instead of ‘allowance’. As Applicant contention before the court was that he was being paid allowances separately from salaries the document clearly was not reliable evidence. On the issue of mitigation, Mr. Mandiwanza submitted that given Applicant qualifications and experience he could have reasonably found alternative employment within four months following his termination. On this basis 2nd Respondent prayer was for the court to award only 4 months’ salary in damages in lieu of reinstatement. To the

query by court as to what was the 2nd Respondent position on the issue of backpay, Mr. Mandiwanza indicated that he had not considered the issue he would leave it for the court to determine.

Mr. Mandiwanza, in reply, submitted that he agreed with position of law that an application stands or falls on the basis of Founding Affidavit. It was his submission in this case there was a challenge that 2nd Respondent had not produced the contract of employment as there never was one. The relationship between the Applicant and the directors had initially stated as a friendship which had changed to employment relationship after the setup of the mine. There was therefore no written contact. On the issue of renumeration would appear from the 2nd Respondent submissions that salaries were not administered formally. He also submitted that Applicant was also not subjected to the logging system in view of his position in the company and also the nature of the relationship between him and the Directors of 2nd Respondent. He was not in a position to tender any evidence in support of overtime claim.In respect of all other claims he was persisting with them. He however was again in no position to place any evidence before the court as soon after his termination he was prevented from entering the Human Resources Section. With regards the Applicant’s professional experience Mr. Mutonhori submitted applicant was employed by the 2nd Respondent as a Mine Manager? He was responsible for, amongst other duties, maintaining the company pay-roll, keeping stock-records, etc.

In response to the court query as to whether backpay/damages in lieu of reinstatement were being quantified separately Mr Mutonhori submitted that the claim for back-pay was filed as a separate component to damages in lieu of reinstatement. The claims were presented as 16- months salary in back-pay and 34 months salary in damages in lieu of reinstatement. On this basis he prayed for the court to grant the application in the terms of the draft order as amended.

EVALUATION

After considering the submissions by the parties the authorities referred by them the following constitutes the court’s finding on the claims as filed.

BACKPAY

The Appellant claim is for backpay in the amount of USD 8000.00 or the equivalent in ZIG dollars of 16 months. The claim covers a period from January 2023 to April 2024 i.e. from the date of unlaweul termination to the date of this court order directing reinstatement.

The 2nd Respondent concedes that the salary was fixed USD $500. The 2nd Respondent desisted from addressing the issue as to whether backpay forms part of the damages in lieu of reinstatement or it stands alone. Counsel simply left it to the court to determine.

The position of the law is that “Back-pay” is a concept associated with reinstatement. If an employee is reinstated, she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal but is not reinstated, he/she will be entitled to damages in lieu of reinstatement the major element of which will be back-pay. See Kuda Madyara vs globe and Phoenix Industires (Private ) Limited t/a Ran Mine SC 63/02. Leopard rock Hotel Company (Private) Limited vs Van Beek. It is clear on the basis of the facts in this matter that the Appellant was not reinstated. He is therefore entitled to back-pay as claimed. He is therefore awarded the same. The backpay awarded, shall, however, in sync with the position of the law, be subsumed under damages in lieu of reinstatement.

OUTSTANDING ALLOWANCES/VACATION LEAVE DAYS/OVERTIME

The situation presenting in this case is that the Applicant has placed claims before the court which are not supported by any form of evidence. The Applicant has submitted that there was no written contract of employment. He has also submitted that he was not receiving pay slips from the employer for the duration of the contract. Whilst the court notes that the law places an obligation on the employee to prove each and every claim (see First Mutual Life v Muzivi ) it is however also clear on the basis of section 12A(5) of the Labour Act [CAP 28;01] that obligations are also placed on the employer. Section 12A(5) reads as follows,

“All renumerations shall be accompanied by a written statement showing

The name of the employer and employee: and

The amount of renumeration and the period in respect of which it is paid: and

The component of the renumeration representing any bonus or allowance; and

Deductions; and

The net amount received by the employee

The applicant in this case is claiming allowances reflected as 2000 Rands allowance per month to cover the period from the time of the unlawful termination to the date of this court order directing reinstatement. He has submitted proof in the form of Annexure E, the evidence however has been challenged by the Respondent as being unreliable evidence. The Court finds that the evidence presented in the form of Annexure E as unreliable for the reasons as espoused

by the 2nd Respondent. On this basis the claim for allowances has been dismissed. With respect to the claim for overtime the 2nd Respondent’s challenge to that claim is that the claim was not specifically pleaded to by the Applicant in his papers. The Court once again accepts this position so the claim for overtime claim stands to be dismissed.

With regards to vacation leave the Applicant has not placed before the court any evidence to substantiate the claim. The 2nd Respondent however in response to the claim has presented a position that the leave days were actually exhausted. It is the Court’s view that where the employer states, in opposition, that leave days were exhausted the onus clearly shifts to the employer to prove that averment made. The 2nd Respondent’s Counsel however submitted that there are no records at the company for reasons that Counsel was clearly reluctant to disclose to the court. In such circumstances where there is a failure by the employer to comply with the provisions of the Act, an adverse inference clearly ought to be drawn against the employer in the event of a dispute as in casu. It is clear therefore the Applicant would have been entitled to an award for accrued vacation leave, he has however failed to specifically plead accrued vacation leave up to the date of his unlawful termination. He has however pleaded vacation leave days that accrued from the date of his unlawful termination to the date of this court order directing reinstatement. Vacation leave days being a statutory right he is entitled to be awarded the leave days as claimed. He is accordingly awarded vacation leave days calculated at the rate of 2 days per month x 16 months x USD 19 daily rate.

DAMAGES IN LIEU OF REINSTATEMENT

On the last issue of damages in lieu of reinstatement the 2nd Respondent position is that the Applicant has failed to prove that he mitigated his losses immediately after losing his job. Applicant on the other hand contends he was doing vending business for 18 months.

The 2nd Respondent however has made a concession to pay 4 months in damages. As outlined above the principle of the law is that the litigant who is not reinstated by a employer is entitled to be paid back-pay as part of damages in lieu of reinstatement the majority of which shall be back-pay. The Appellant has already been awarded 16 months in back-pay. The 2nd Respondent has tendered 4 months salary on the basis that it would have taken Applicant that period to obtain alternative employment. Taking into account the Applicant personal circumstances alluded to by his Counsel and the harsh economic prevailing at the time of termination the court finds that it would have taken Applicant 12 months at most to obtain alternative employment.

In the result the court hands down an order in the following terms:

The application is granted with costs on the ordinary scale.

The 2nd Respondent is directed to pay to the Applicant the following damages in USD dollars or in ZIG dollars at the prevailing interbank rate on the date of payment.

Damages In Lieu of Reinstatement including backpay USD$8000+ $6000

=USD$14000

Vacation leave days USD 608 GRAND TOTAL = USD$14608

Such payment shall be made within 60 days of the date of this order.

The claims for allowances as well as overtime be and are hereby dismissed.