Allen Chikosha v Zimbabwe Revenue Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 14 JANUARY 2025
JUDGMENT NO. LC/H/19/25
CASE NO. LC/H/300/24
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IN THE LABOUR COURT OF ZIMBABWE HELD AT HARARE 14 JANUARY 2025

AND 17 JANUARY 2025

IN THE MATTER BETWEEN:-

JUDGMENT NO. LC/H/19/25 CASE NO. LC/H/300/24

ALLEN CHIKOSHA	APPLICANT

AND

ZIMBABWE REVENUE AUTHORITY	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant	Mr. A.T. Nhidza

For Respondent	Mr. G. Sithole

MURASI J.,

This is an application for quantification of damages. I should point out that the matter suffered several stillbirths when parties requested postponements to enable them reach an out-of-court settlement. Alas, this was not to be as the parties failed to agree on certain key issues.

BACKGROUND

The brief history of the matter is that Applicant was employed by the Respondent. In a letter dated 4 October 2017, Applicant was suspended from employment. The hearing before the Respondent could not take place for various reasons. The matter was brought before a Labour Officer who attempted to resolve it to no avail. A Certificate of No Settlement was issued which directed that the parties appear before the Respondent’s Disciplinary Committee which Committee was to finalize the matter by 14 September 2018. This did not happen, and the matter was referred to the Labour Office in terms of section 101 (6) of the Labour Act. A determination was made by the Labour Officer which is dated 27 November 2020.

The determination by the Labour Officer found the Applicant guilty on some of the charges and not guilty on others. The essence of the determination was that Respondent was ordered to lift Applicant’s suspension and proceed to pay Applicant’s salaries and benefits. Further, Respondent was requested to give Applicant a lesser penalty of a Final Written Warning as provided in Clause

6.16 of Respondent’s Code of Conduct. In a letter dated 6 April 2021, Respondent informed

Applicant’s representatives that it was going to file an appeal with this Court. The matter was heard on 16 January 20923 at the Mutare circuit and judgment was rendered on 20 January 2023. This Court’s judgment upheld the decision of the Labour Officer.

THE APPLICATION

Applicant gave evidence in the hearing. In summary, Applicant informed the Court that he started his career with the Respondent as a Graduate Trainee in August 2011. He holds a Bachelor of Business Studies and a Masters Degree majoring in Investments. He also has several postgraduate diplomas and certificates under his belt. He produced his September 2017 pay slip to show his earnings at the time he was suspended from employment. He is now aged 39 years and at the time of his suspension, he was 31 years of age. Applicant added that after the decision of both the Labour Officer and the Court, Respondent was willing to reinstate him and stated that it would pay damages in lieu of reinstatement.

Applicant stated that from the rime he was suspended, he could not find alternative employment and relied on his spouse who was an ECD teacher. He submitted he started engaging in subsistence farming after 2020 when he began the cultivation of tomatoes with maize being grown as a staple food. He further stated that he would realize an amount USD 300-00 per four (4) months. Applicant also informed the Court he started applying for jobs in November 2017 but was unable to get anything.

Under cross-examination by Mr. Sithole, he admitted that he had been able to employment within a short space of time after leaving tertiary school but had been unable to get any alternative when now had extensive experience. He also informed the Court that he had three children with two of them being of school-going age. On being cross-examined on the period he had claimed in the application of 88 months, Applicant stated that this was on the high side and was of the view that a period 36 months would be a reasonable period in the circumstances. Applicant also conceded that the figures that were reflected in the Draft Order and the documents were not correct and the correct computation should come from the pay slip which he had submitted. He added that the figure in question needed to be corrected.

Mr. Nhidza submitted that the period claimed had to be assessed taking into account the period when the country was under the COVID-19 pandemic, and no one could get employment during that period. Mr. Sithole submitted that Applicant had not sustained the draft computations in the application and that Applicant had conceded that the figures were grossly inflated. Mr. Sithole further argued that Applicant was fairly young and if he had been aggressive on the job market, he would have found alternative employment in a short space of time and at most within 12 months.

ANALYSIS

The law on the application for quantification of damages has been settled in many cases both before this Court and the Supreme Court. In Farm Community Trust v Claudious Chemhere SC 22/13, it was held as follows:

“Damages are meant to place the employee in the position he would have occupied had the contract of employment not been terminated, subject to the duty upon him to mitigate his loss.”

In Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S), it was also held as follows:

“The obvious remedy for unjustified, unfair, involuntary termination is re-employment if the employee so wishes and otherwise compensation. The first remedy is not available ay common law, the essentiality and reciprocal nature of contractual obligation means that it is impossible to force unwilling party to remain bound to a contract against his will.”

The facts which are common cause in this case are that there is an extant Court Order to the effect that Applicant be paid his dues from the date of suspension to the date of the Court Order. This is for the period from October 2017 to November 2020. In the hearing, Mr. Sithole did not dispute that the Applicant earned the figures that were reflected in the pay slip produced before the Court.

What remains to be determined is the period Applicant should be awarded damages in lieu of reinstatement. When one has regard to the evidence, Applicant is an accomplished scholar within relevant experience. The record shows that Applicant attached evidence of having submitted his CVs to several companies for various positions. However, Applicant’s duty to mitigate arose after the determination of the Labour Officer in November 2020 as previously he was deemed to be on suspension and not dismissed from employment. The record shows that Applicant has vailed information that he made applications on 6 September 2021, 2 June 2022 and 12 January 2023. Alas, Applicant did not inform the Court whether he was called for interviews in those circumstances. Applicant sought to tell the Court he was indeed unable to find any form of alternative employment. Having regard to Applicant’s qualifications and experience, the Court finds it difficult to believe him. Applicant is young and has relevant qualifications and experience in the mercantile field. It should not take Applicant more than three years to find alternative employment. As already conceded by the Applicant, the figure of 88 months touted in the application was clearly an exaggerated one.

I would also want to delve into the issue of the claim for bonusses made by the Applicant. The record shows that Applicant did not produce any contract of employment showing that Applicant was entitled to receive an annual bonus. It is a truism that bonuses are paid at the discretion of the employer unless specifically provided in a contract of employment. In the circumstances, the claim for bonuses should be declined.

Applicant also informed the Court that he was earning a figure of USD 300 in every 4 months. He stated that his wife was an ECD teacher and was looking after him from the date of his suspension. He also stated that he has two school-going children. I am of the view that Applicant was not being candid with the Court as there must have been some other source of income which he did not disclose to the Court. He did not impress as a good witness.

What then is the legal position as regards the awarding of backpay and damages? In Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo SC 32/13, GOWORA JA (as she then was) had this to say:

“Back-pay cannot legally be awarded in respect of a period after the date of the order of reinstatement is granted. This principle was applied by SANDURA JA in Chiriseri & Anor v Plan International 2002 (2) ZLR 261 at 265 D-G where he stated:

‘As this court stated in Leopard Rock Hotel Co (Pvt) Ltd v Van Beek, supra, at 254H- 255A:

‘….’back-pay’ and ‘damages’ are indeed different concepts, but only in the sense that ‘damages’ is a wider concept. It will normally include back-pay, but may include, for example, compensation for loss of promotion prospects, interest, and other elements as appropriate.’

However, there is no basis for awarding the appellants back-pay and benefits in respect of the period after 29 march 1995, the date on which the order of reinstatement was issued...”

The important issue that comes from the Leopard Rock judgment is that ‘back-pay’ and ‘damages’ are interlinked. ‘Damages’ will normally include ‘back-pay’. In casu, Applicant was awarded backpay up to the date of the decision of the Labour Officer. This is clear enough and the period is some 38 months.

After having discussed Applicant’s personal circumstances and his qualifications and experience, it is my considered view that Applicant could have found alternative within a period of 12 months in the circumstances.

There is an issue which was raised by Mr. Sithole as regards the currency in which the payments should be made. His argument was that the debt arose prior to February 2019 and should be paid at the parity rate as provided in the requisite Statutory Instrument. The Court was at pains to explain to Mr. Sithole the import of the provisions of that statute. In Zambezi Gas (Pvt) Ltd v N.R. Barber (Pvt) Ltd SC 3/20 MALABA CJ made the following pertinent remarks:

“The value of the assets and liabilities should have been expressed in United States Dollars immediately before 22 February 2019 for the provision of s 4 (1) (d) of S.I. 33/19 to apply to them.

Further,

“It is the assessment of the value of assets and liabilities in United States Dollars that matters.”

The liability to pay, that is the judgment, must have been determined before February 2019. Such a position was supported by UCHENA JA in Regis Maganzi v Francis Jekera & Another SC 52/22. The position was further explained by KUDYA JA in Ingalulu Investments (Private) Limited and Another v National Railways of Zimbabwe and Anor SC 42/22. The current lid on the interpretation of the provision is found in Unifreight Africa Limited v Emily Mashinya CCZ 13/24.

Having stated thus, I now come to the actual computations. Applicant’s gross salary at the time was USD 1261-39. The Applicant shall be entitled to the following:

The salaries and benefits for the period from October 2017 to November 2020 is 38 months bringing a gross total of USD 47 932-82.

Damages in lieu of reinstatement for a period of 12 months will result in a gross total amount of USD 15 136-68.

Cash in lieu of Notice for 3 months will result in a gross total of USD 3 784-17.

The above are gross amounts and payment thereof should have regard to statutory deductions.

The amounts shall be paid at the prevailing interbank rate as at the date of payment.

Respondent to meet Applicant’s costs.

ZIMRATU-	Applicant’s legal representatives

Kantor & Immerman	Respondent’s legal practitioners.