Chenjerai Katiyo VS Cochrane Engineering (Pvt) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/434/2014
HARARE, 27 MAY 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/434/2014

HARARE, 27 MAY 2014	    		  	               CASE NO. LC/H/528/11

AND 18 JULY 2014

In the matter between:-

CHENJERAI KATIYO					Applicant

And

COCHRANE ENGINEERING (PVT) LTD		Respondent

Before Honourable E Muchawa, Judge

For Applicant		-	S. Zvinavakobvu (Legal Practitioner)

For Respondent		-	I. Chagonda (Legal Practitioner)

MUCHAWA, J:

This is an application for quantification of damages.  It is based on a judgment by CHIVIZHE J whose operative part reads as follows:

“In the circumstances the appeal ought to be dismissed.  The decision by the General Engineering Committee and indeed the decision by the Works Council clearly cannot stand.  The Respondent shall be reinstated into employment with effect from the date of the wrongful termination of contract, being 24th March, 2009.  The Appellant shall pay to the Appellant (sic) the salary and benefits from that date to the date of this order. ………………………………  In the event however that reinstatement is no longer an option the Appellant shall pay to the Respondent damages in lieu of reinstatement the quantum of which will be agreed upon between the parties, failing which either party can approach the Labour Court for quantification.”

Applicant is claiming back pay from the date of unfair dismissal 24 March 2009 to the date of CHIVIZHE J’s judgment being 8th November 2013.  In this regard a total amount of US$22 732.43 is claimed.

In addition to the back pay claimed over a period of fifty six months (four years and eight months), applicant is claiming damages in lieu of reinstatement for an additional twenty four months.  The total amount for the twenty four months is US$12 147.60.

An additional claim is that respondent pays applicant’s pension from Old Mutual as part of his terminal benefits.

The total monetary claim before me is to the tune of US$34 880.03.

Respondent opposes the claim and tenders six months’ salary in full and final settlement of the claim for damages.  In support of respondent’s position it is argued that applicant’s duty to mitigate his loss arose immediately after dismissal and the back pay should form a portion of the damages.  An award of eighty months is said to have no legal basis.

Following submissions before me at the hearing and the leading of evidence, it appears that there are four issues for my determination.  These are;

Interpretation of the judgment of CHIVIZHE J: Whether back pay should be calculated as a standalone amount covering fifty six months.

Salary to be used in the calculation of the back pay and damages.

Quantum of damages in lieu of reinstatement.

Whether respondent should pay applicant’s claim for pension.

I proceed to deal with the above issues in turn.

Interpretation of the judgment of CHIVIZHE J and period of payment of back pay, if any

Applicant submits that the award on which this quantification is based provides for two options.  The first is reinstatement and the other is payment of damages in lieu of reinstatement.  In addition to either of the options, applicant submits that this provision in the operative part of the order applies;

“The respondent shall pay to the appellant the salary and benefits from that date (being 24th March, 2009) to the date of this order (Being 8th November 2013).”

In other words, it does not matter which option respondent chooses, back pay is to be paid out from the 24th March 2009 to the 8th November 2013.

On the other hand respondent argues that the order of CHIVIZHE J is in two parts.  Reinstatement is said to be the main and damages in lieu of reinstatement is the alternative.  The order is said to provide for back pay only in respect to reinstatement.  As the parties have chosen the damages route, respondent argues that back pay should not be considered as a stand alone award.  In line with the reasoning in Leopard Rock Hotel Company Pvt Ltd v Van Beek 2000 (1) ZLR 251 (S), I was urged to consider back pay as part of the damages and therefore assess the damages by reference to back pay lost.  In other words the back pay is to be limited to a period from the date of wrongful dismissal to a date by which the applicant could, with reasonable diligence, have obtained alternative employment.

The Supreme Court was faced with interpreting a similar award in the matter of Zimbabwe United Passenger Company v Richard Christopher Daison SC 87/2002.  The Court in that case had to determine whether Daison was entitled to his back pay and benefits for a period of about fifty months.  The court held that he was, as the Tribunal had ordered Zupco to reinstate him with no loss of salary or benefits or pay him damages in lieu of reinstatement.  It was the court’s view that where reinstatement is chosen it would have a retrospective effect and if he is not reinstated, but is paid damages, those damages must include his back pay and benefits.  The case of Kuda Madyara v Globe and Phoenix Industries (Pvt) Ltd t/a Ran Mine S – 63 – 2002, at page 5 was quoted with approval as follows;

“As far as back pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect.  In my view, both of them are entitled to back pay and benefits.  The only difference between them is that one gets his job back whilst the other is paid damages for the premature termination of his employment contract.”

See also Chiriseri and Anor v Plan International SC 56/2002)

In the circumstances I find that applicant in casu is entitled to back pay to be paid from the 24th March 2009 to the 8th November 2013.

Salary to be used in the calculation of the back pay and damages.

Applicant submitted a schedule (annexure D) of the amounts claimed premised on the Collective Bargaining Agreements of the Engineering, Iron and Steel Industry.  Salary scales applicable to a fitter and turner, skilled worker class 2 Grade C1 were applied as follows;

Back pay						Per month

Feb 2009	-	March 2009		-	$187.18

April 2009	-	October 2009		-	$280.00

Oct 2009	-	Feb 2010		-	$299.49

March 2010	-	Aug 2010		-	$336.93

Sep 2010	-	Nov 2010		-	$370.62

Dec 2010	-	Feb 2011		-	$374.36

March 2011	-	Feb 2013		-	$448.85

March 2013	-	Oct 2013		-	$506.15

Nov 2013 (8 days)				-	$116.60

TOTAL			-     $22 732.43

The damages claimed for 24 months in lieu of reinstatement were worked out using the salary of $506.15 being the salary of November 2013, the date of the court order.

Respondent argues that the schedule of salaries (annexure D) does not specify any necessary information in order to quantify and verify the claim in order to assist the Court.  At the hearing applicant undertook to supply the copies of the CBAs upon which the claim is based by the 30th May 2014.  By the time of the writing of this judgment, on the 20th June 2014, such information had still not been provided for the period February 2009 to March 2009 and for March 2011 to November 2013.

Further I was referred by respondent to the case of First Mutual Life Assurance Ltd v Muzivi supra.  That case states at page 328 that “if he (employee) was dismissed when he was in a certain grade, it was for him to tell the court what salary scale applied to him at the time of his dismissal.  He could not just claim that he was in a certain grade whose salary scale he did not know.  This would suggest that he did not know what he was claiming.

Based on the evidence led and the documentary proof of the relevant statutory instruments being amendments to the Collective Bargaining Agreement of the Engineering, Iron and Steel Industry, the following amounts are found proved as back pay for applicant.  Where no evidence has been provided to verify amounts claimed, this has been disallowed or the last proved amount was applied.

Back pay Award

Total back pay award is $19 504.35

Applicant has applied a salary scale to his damages of $506.15 being the amount he claims to be payable to his grade at the date of the court order.  This is supported by the case of Redstar Wholesalers v Edmore Mabika SC 52/05 wherein it was held that the damages be calculated at the rate pertaining at the date of the order of reinstatement.

In casu no proof was provided of the $506.  15 as the rate pertaining at the date of the order of reinstatement.  This court will use the last rate proved to have been applicable.  As already stated above, that amount is $374.36.

Quantum of damages in lieu of reinstatement

Applicant claims damages in lieu of reinstatement over a twenty four month period.  He claims that he is unemployed due to the shambolic state of the economy.  It is stated that he has moved from company to company in search of work, but nothing has materialised.  Reference is made to applicant’s state of health (for the greater part of his service he was chronically ill suffering from a kidney ailment).

Respondent argues that applicant was incapacitated due to ill health and that he should prove that he has made adequate efforts to secure alternative employment.  Respondent offers 6 months’ salary as damages.

I was referred to established case law for the principles to consider in assessing damages.  The first is that evidence must be led.  (see Farm Community Trust v Claudious Chemhere SC 22/2013).  Evidence was indeed adduced.  What the evidence established for me is that applicant could not prove with certainty how and where he had looked for alternative employment.  Of all the various methods available to him to look for employment which include registering with employment agents, advertising availability, using the internet and responding to newspaper advertisements, applicant claimed to have used the door to door method of visiting companies.  He however could not clearly remember relevant details about any such places.  I was left with the distinct impression that applicant had not seriously looked for any alternative employment.

This takes me to the second principle which is the duty on the employee to mitigate his loss by looking for reasonable alternative employment (Gauntlet Security Services Pvt Ltd v Leonard 1997 (1) ZLR;

“But the employee must mitigate his loss.  He must look for and accept any reasonable offer of alternative employment.  He cannot just do nothing.  ……  If he fails to take other employment when it would have been reasonable for him to do so, a deduction will be made in respect of the remuneration he would have earned from the substituted employment.”

Applicant’s claim for a twenty four months’ salary as damages is not justified in casu as applicant has not satisfied me that he looked for any reasonable offer of alternative employment.  I can only award damages for the period between applicant’s wrongful dismissal and the date when he could reasonably be expected to find alternative employment.

Though applicant referred to his ill health, I was not favoured with any medical reports to assist me in whether this should work in favour or against applicant.  I have therefore not considered that argument.

Taking all the above circumstances into account I believe that an award of damages in lieu of reinstatement to the tune of twelve months would serve the justices of this matter.  Consequently the damages in lieu of reinstatement are $374.36 x 12 = $4 492.32.

The pension claim

Applicant is claiming an unspecified amount as pension as part of his terminal benefits.

Respondent argues that the claimed pension is not administered by the employer but by a pension fund manager in terms of the applicable rules.

In any event this pension is not a benefit that was proved as a contractual benefit.  The claim does not even sound in money.

There is no legal basis for this claim which I dismiss.

Accordingly applicant’s claim is allowed as follows;

Back pay		19 504.35

Damages		  4 492.32

TOTAL		23 996.67

subject to the relevant provisions of tax deductions.

Consequently;

It be and is hereby ordered that respondent pays the total sum of US23 996.67 (subject to the relevant provisions of tax) being back pay and damages in lieu of reinstatement.

MUTAMANGIRA & ASSOCIATES, Applicant’s legal practitioners

ARTHERSTONE & COOK, Respondent’s legal practitioners