All Planets Funeral Services v Sandra Imbe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/554/16
HELD AT HARARE ON 14th JUNE, 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO. LC/H/554/16

HELD AT HARARE ON 14th JUNE, 2016 	    CASE NO. LC/H/732/15

AND 9TH SEPTEMBER, 2016			    X REF: LC/H/APP/1024/15

In the matter between:-

ALL PLANETS FUNERAL SERVICES					    Appellant

And

SANDRA IMBE								    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T Goro (Legal Practitioner)

For Respondent	:	Mr R Masomera (Deputy Secretary – Legal

Affairs Zimbabwe Federation of Trade Unions)

MHURI J.

In terms of Section 98 (10) of the Labour Act [Chapter 28:01] (THE ACT) an appeal against an arbitral award must be premised on a point of law.

Appellant alleges that the Arbitrator awarded damages without hearing evidence on the reasonable time it would have taken Respondent with reasonable diligence, to obtain alternative employment.  Also that, the Arbitrator awarded damages when he had found that Respondent had not mitigated her loss.  Further, that the Arbitrator had awarded 12 months damages which is a total of three distinct components.

A ruling on damages is factual and is therefore not appealable.  This is trite.  Where however the wrong principle is used in the computation of damages that ruling will be appealable.

It is an established legal position that where reinstatement to a job has retrospective connotation, back-pay is payable and where reinstatement is no longer possible, back pay is payable as part of the damages.

See:	LEOPARD ROCK HOTEL COMPANY (PRIVATE) LIMITED

vs

VAN BEEK 2000 (1) ZLR 251 (S)

in which the position was stated at page 255 H – A as follows, and which principle the Arbitrator was alive to;

“Back-pay” is thus 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, she will be entitled to ‘damages’, a major element of which will be back-pay.  Perhaps, more correctly, one should say the damages will be assessed by reference to the back-pay lost.

But here back-pay will be limited to a period from date of wrongful dismissal to a date by which she could with reasonable diligence have obtained alternative employment.”

In the case of

AMBALI vs BATA SHOE COMPANY LIMITED 1999 (1) ZLR 374

the principle was also established that where an employee has been dismissed, whether unlawfully or not, he/she has a duty to mitigate his/her loss immediately.  He cannot just sit back, if he does his damages will be reduced.

Again, the Arbitrator was alive to this legal principle, as is clear from the record where at page 19, he stated,

“The tribunal in its quantification of wages must consider the back pay award as the complainant in this instant has failed to demonstrate that she attempted to mitigate her loss.

Complainant is an able bodied young lady and there is no record of which companies she approached in trying to seek for alternative employment.  There was no evidence that she had been turned down by a prospective employer.  I am not satisfied that the complainant made any effort to mitigate her damages.  Her claim for damages therefore will be reduced.

The fact that she had relocated to the rural areas does not exempt her from attempting to look for alternative employment.”

Further, a look at the Arbitrator’s analysis of the submissions (record page 19, 3rd paragraph) shows that Respondent’s claim was 12 months salary as damages being a reasonable period within which to find alternative employment despite the harsh economic conditions.

According to the analysis, Respondent had been awarded 5 (five) months salary $1 515,00 as damages in lieu of reinstatement.

Where I find error in his analysis and application of the law, is where despite the principle stated in the Ambali case (supra), the Arbitrator states,

“It’s trite that she be awarded seven more months to the initial five months awarded as reasonable period to seek alternative employment.”

This increase in my view has no legal basis, it totally flies against the principle as enunciated in the Ambali case especially in view of his finding that Respondent failed to mitigate her loss.  That being the case, the award is impeachable in as far as it relates to the 12 (twelve) months damages.  I will therefore set aside the 12 months damages and substitute them with the (five) 5 months initially awarded.

The order of the Court is therefore that the appeal be and is hereby allowed.  Appellant pays Respondent a total sum of $2 748,00 computed as follows:

Total wage shortfalls				=	$   555,00

Unpaid overtime 					=	$   678,00

5 months salary as damages in lieu 		=	$1 515,00

$2 748,00

Each party is to bear their own costs.

KADZERE, HUNGWE & MANDEVERE – Appellant’s legal practitioners

ZIMBABWE FEDERATION OF TRADE UNIONS – Respondent’s representatives