Bernard Lot & 18 Ors v Shanxi Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/403/16
HARARE, 2 MARCH 2016
CASE NO.
JUDGMENT NO. LC/H/403/2016
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IN THE LABOUR COURT OF ZIMBABWE	                     JUDGMENT NO. LC/H/403/16

HARARE, 2 MARCH 2016				          CASE NO. LC/H/APP/1460/15

AND 23 JUNE 2016

In the matter between:-

BERNARD LOT & 18 ORS					Applicants

And

SHANXI CORPORATION						Respondent

Before The Honourable E. Muchawa, Judge

For Applicants	Mr Maramwidze (Trade Unionist)

Respondent	In default

MUCHAWA, J:

This is an application for quantification of damages.

The 18 applicants are former employees of the respondent who were all employed as watchmen.  They were dismissed on allegations of misconduct.  That matter ended up at arbitration and the arbitrator set aside the disciplinary committee decision.  The respondent appealed to this court.  The appeal partially succeeded on the following terms;

“(i)	The appellant is ordered to reinstate the respondents with no loss of salary and benefits with no loss of salary and benefits from the date of dismissal to 17 March 2014.  If reinstatement is no longer tenable the appellant is ordered to pay damages in lieu of reinstatement the amount of which parties may agree upon failure of which either party may refer the matter to this Court for quantification.

(ii)	The first, third and eleventh respondents charged with giving unauthorized press statements be and are hereby given written warnings.

(iii)	That the period 18 March 2014 to 9 July 2014 be treated as unpaid leave.

(iv)	There is no order as to costs.”

The respondent refused to reinstate all applicants alleging that the relationship had gone so bad that there was no respect for the employer.

The respondent filed an opposition to the application for quantification but did not turn up for the hearing despite being given proper notice of the set down date.  This court proceeded to hear the applicants’ submissions and evidence.

Rate of Pay

In support of their application, the applicants attached Informative Circular No. 004/2013 of the National Employment Council for the Construction Industry of Zimbabwe which sets out the minimum wage for watchmen at an hourly rate of $1.62 effective from 1 July 2013.  This was the salary at date of dismissal.

Attached to the notice of opposition of the respondent is a letter dated 23 July 2013 written by the designated agent for the National Employment Council for the Construction Industry Zimbabwe which is a response to an application for shift or short time work due to financial constraints.  It states,

“Reference is made to your letter dated 10 July 2013 concerning the above subject.

Your option of introducing shift work is within the confines of the law if your financial position is unsound.  Before implementation, please take note and observe the following

The affected employees should be given at least 7 days’ written notice.

Each affected employee should not receive less than 50% of his/her monthly wage.

No shift should be without work for more than one month or for an aggregate of more than 6 months in any period of 12 months.

The period during which an employee is not engaged in full time work should be regarded as unpaid compulsory leave and does not interrupt continuity of employment.

Please be guided accordingly.”

There was no further proof availed to me to show that the respondent did then proceed to implement the recommendations, in particular, I was not favoured with any copy of written notice to the employees and the final terms of the short time work they put into place.  In the circumstances I accept the rate of $1.62 per hour put forward by the applicants.

The monthly rate is $1.62/hr x 44 hrs/week x 4. 33 weeks/month = $308.64

Back pay

In the case of Redstar Wholesalers v Mabika SC 52/05 it was held that the date to which back pay should be payable is the date on which the order of reinstatement is made.  See also First Banking Corporation v Marimo SC 57/05.

In casu the order of Muzofa J ordered that the applicants be paid their salaries and benefits from the date of dismissal to 17 March 2014.  The order of reinstatement was made by the arbitrator on 9 July 2014.  Back pay would have been calculated from 20 December 2013 to 9 July 2014 but the order of Muzofa J provides that the period 18 March 2014 to 9 July 2014 be treated as unpaid leave.  Accordingly back pay is only payable from 20 December 2013 to 17 March 2014.

Each applicant is therefore entitled to three months’ salary as back pay.

Award for each applicant is		 $308.64 x 3

=	 $925.92

Total award for 18 applicants	$16 666.56

Cash In Lieu of Notice

The applicants are claiming three months’ cash in lieu of notice each.

This is a claim supported by the Labour Act [Chapter 28:01] in section 12 (4) thereof.

I award as follows:

Award for each applicant is		$308.64 x 3

=	$925.92

Total Award for 18 applicants =  $16 666.56

Cash In Lieu of Leave

The applicants are claiming leave pay for the four months of December 2013 to March 2014.

I find that there is no legal basis for this claim as I have already awarded back pay for this period. In any event, the letters of dismissal on record show that each applicant was duly paid what is called “pay leave”.

The claim for cash in lieu of leave is accordingly dismissed.

Damages In Lieu of Reinstatement

The applicants are claiming damages in lieu of reinstatement for 18 months each.

The respondent opposes this as an exaggerated claim and argues they each had varying years of service ranging from between 1 to 5 years and that each of them has become either re-employed or self employed.  The court was urged to use the provisions of the Labour Amendment Act No. 5 of 2015 Section 4 (b) (4b) and 5 (2) thereof in working out a minimum package.

I am guided in my approach by the case of Chiriseri v Plan International SC 56/02 which states that damages are calculated on the basis of the length of time, calculated from the date of dismissal, which it would reasonably take the dismissed employee to find alternative employment.

In Ambali v Bata Shoe Company Limited 1999 (1) ZLR 417 (SC) it was held that where a person has been wrongfully dismissed and he seeks damages, he is entitled to be awarded the amount of wages or salary he would have earned had his contract not been prematurely terminated.  He however has an obligation to mitigate his loss immediately. He must look for alternative employment and should not sit around and do nothing.  If he does not look for alternative employment, his damages will be reduced and he will only be compensated for the period between his dismissal and the date when he could reasonably have been expected to find alternative employment.

In the matter in casu, all 18 applicants do not possess any special qualification or skills.  They gave evidence which points to all of them falling within the general labour category as the tasks they are able to perform and are performing require little skill and can be learned quickly.  Their jobs are non descriptive and they do anything anybody wants them to do.  They do not require any specific training.

It is my opinion that for the kind of general work, it would at most reasonably take each applicant six months to get alternative employment.  I now consider each applicant’s attempts to get alternative employment and their efforts at mitigating their loss.

1st applicant Bernard Loti

The 1st applicant is currently vending fruits and makes a monthly income that averages $130 per month.  His attempts to get alternative employment have been unsuccessful.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is				 $780.00

Balance due to 1st applicant				=	 $1 071.84

2nd applicant – L Runánga

The 2nd applicant is surviving on farming and makes an average of $125.00 per months.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation 				 	$   750.00

Balance due to 2nd applicant					$1 101.84

3rd applicant Cuthbert Lionde

The 3rd applicant currently loads lorries with sand and makes an average of $100.00 per month.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is				$   540.00

Due to 3rd applicant					 =	$1 311.84

4th applicant – P Gomi

The 4th applicant is involved in farming and makes an average of $90 per month.

6 months damages at $308.64				=	$1 851.84

Less income from mitigation which is				$  540.00

Due to 4th applicant						=	$1 311.84

5th applicant Kezias Ngulube

The 5th applicant is involved in farming and makes an average of $80 per month from such market gardening.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is				 $ 480.00

Due to 5th applicant						=	$1 371.84

6th applicant Tongai Mandiya

The 6th applicant got a job at a farm where he earns $43 per month after 7 months.  He claims to have been searching for alternative employment without success.

The 6th applicant is entitled to damages for 6 months at $308.64 per month

=	 $1 851.84

7th applicant Joseph Pute

The 7th applicant is involved in the business of selling fish and he makes $60 per month.

6 months damages at $308.64 per month		= 	$1 851.84

Less income from mitigation which is				$360.00

Due to 7th applicant						=	$1 491.84

8th applicant Trust Pio

The 8th applicant has not done anything continuously to date to mitigate his loss.  He is planning to engage in farming in the next season.  He has done occasional part time jobs.

The 8th applicant has done what the Ambali case supra says should not be done, that is, just sitting around.  His damages will be reduced on that account as he could not quantify to the court the income made from the part time jobs.

I accordingly award to him damages for 2 months only at $308.64 per month

=	$617.28

9th applicant Bamusi Musiya

Since his dismissal 9th applicant is engaged in fishing and part time jobs making $50.00 per month.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$   300.00

Due to 9th applicant 						=	$1 551.84

10th applicant F Nyarenda

The 10th applicant is a shoe repairer. He makes an average of $75 per month

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is				$   450

Due to 10th applicant					= 	$1 401.84

11th applicant T Muzengeza

The 11th applicant is surviving on selling sand realizing approximately $80 per month.  He has unsuccessfully sought alternative employment.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$  480.00

Due to 11th applicant					=	$1 371.84

12th applicant I. Mutata

The 12th applicant is engaged in farming from which  gets $90 per month.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$   540.00

Due to 12th applicant					=	$1 311.84

13th applicant Gilbert Naison

The 13th applicant is engaged in selling fish realizing an average amount of $75 per month.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$   450.00

Due to 13th  applicant					=	$1 401.84

14th applicant Petunia Tongani

The 14th applicant says she has been engaged in farming but this year her crops were affected by the drought.  She has not realized any profit from the farming.

Applicant seems not have done much to mitigate her loss.  Accordingly her damages are reduced to 3 months only

Due to 14th applicant at $308.64 per month for 3 months =	  $925.92

15th applicant L Handiwatch

The 15th applicant is selling fish worms and realizing $60 per month.

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$   360.00

Due to 15th applicant					=	$1 491.84

16th applicant Catherine Saunyama

The applicant says her husband died soon after she lost employment and she has been unable to leave home and look for alternative employment as she is looking after her minor children.  She however sells freezits and realizes an average of $25.00 per month.

6 months damages at $308.64 per month		= 	$1 851.86

Less income from mitigation which is				$   150.00

Due to 16th applicant 					=	$1 701.86

17th applicant W Mutukuru

The 17th applicant is employed in a chicken rearing and garden business earning $90 per month

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is 				$   540.00

Due to 17th applicant					=	$1 311.84

18th applicant S. Phiri

18th applicant fixes bicycles and makes $50 per month

6 months damages at $308.64 per month		=	$1 851.84

Less income from mitigation which is				$   300.00

Due to 18th applicant					=	$1 551.84

The table below shows the entitlements due to each applicant.

I make the following award,

The respondent is ordered to pay each applicant the amount shown in the table above totaling for all 18 applicants.

Back pay		$16 666.56

Notice pay	$16 666.56

Damages		$24 092.05

TOTAL		$57 425.17