Chinhoyi University of Technology v Zebeth Mahachi

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/714/14
HELD IN HARARE, 9th OCTOBER, 2014
CASE NO. LC/H/351/14
AND 24th OCTOBER, 2014
X REF. LC/H/APP/121/14
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IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/714/14

HELD IN HARARE, 9th OCTOBER, 2014                  	  CASE NO. LC/H/351/14

AND 24th OCTOBER, 2014			       		  X REF. LC/H/APP/121/14

In the matter between

CHINHOYI UNIVERSITY OF TECHNOLOGY		Appellant

And

ZEBETH MAHACHI					  Respondent

Before The Honourable E. Muchawa, Judge

For Appellant      :	Mr S. Zingano (Legal Practitioner)

For Respondent  :	Ms B. Whozhele (Legal Practitioner)

MUCHAWA J,

This is an appeal against an arbitral quantification award.

Respondent was dismissed by Appellant from the post of Permanent Lecturer in November 2009 following disciplinary hearings. An arbitral award thereafter ordered his reinstatement on the 26th August 2011. Damages in lieu of reinstatement was the alternative order.

It seems that Respondent got an engagement as a part time Module Writer from the 1st of September 2010 and was then engaged on a full time basis on the 1st of February 2011 by an Organisation called Certified Commerce and Industry Personnel.

The arbitral quantification was done on the 20th February 2014. The Arbitrator awarded the following –

Back pay (December 2009 to January 2011) 	US$1 955 x 14 months      = US$27 370.00

Back pay (January 2011 to August 2011) US$1 955 x 7 - $450 x 7

(Respondent was getting US$450.00 in alternative employment 	      = US$10 535.00

Leave days due – seventy three (73) – Respondent did not contest

number of accrued days 						      =  US$ 5 489.00

Six months’ notice pay on termination (as per contract of employment) = US$11 730.00

Damages in lieu of reinstatement – fourteen months’ salary 		     = US$ 23 370.00

Total awarded 							         US$83 054.00

The appeal before me raises issues with the Arbitrator’s factual findings which are said not to be in line with applicable principles of law. The issues raised are that;

The Arbitrator seriously misdirected himself on a finding of fact by ruling that Respondent obtained alternative employment in February 2011 and using this date as a basis of his award when unchallenged evidence presented before him showed that the Respondent obtained alternative employment in September 2010, albeit on a part time basis.

It was a misdirection on the Arbitrator’s part to hold that Respondent was entitled to back pay from date of unlawful dismissal to date of reinstatement when at law such payments ceased to accrue when Respondent obtained alternative employment.

It was a gross error on the Arbitrator’s part to award backpay for 21 months period from unlawful dismissal in November 2009 to date of reinstatement order in August 2011 at a uniform salary of USD 1 955 being the salary allegedly prevailing at the date of reinstatement.

The Arbitrator erred in using the salary rate of USD 1 955 as at August 2011 when the evidence before him showed the prevailing salary as USD 1 755.00.

The award of damages in lieu of reinstatement for a period of 14 months was an error as there is no legal basis as Respondent had obtained alternative employment.

The Arbitrator erred in awarding the 14 months damages in lieu of reinstatement as punitive damages on the basis that Appellant was not willing to reinstate Respondent yet Respondent had already secured alternative employment.

At the hearing of the appeal, Respondent raised the argument that Appellant’s grounds of appeal are essentially factual grounds of appeal except for ground 5 and should be struck out. Reference was made to Section 98(10) of the Labour Act which states that an appeal on an arbitral award should be on a question of law. Further reference was made to the case of Muzuva v United Bottlers (Pvt) Ltd 1994 (1) ZLR 217 (S) for the definition of what a question of law is.

Appellant countered this argument by contending that factual findings are appealable if they are alleged to be grossly unreasonable or irrational. Reference was made for this to Hama v National Railways of Zimbabwe 1996 (1) ZLR 664. In casu the factual misdirections are said to be either as a result of a failure to consider the available evidence or the guiding principles of law in quantifying damages so as to amount to questions of law.

In First Mutual Life Limited v Jackson Muzivi SC 9/07, it was held that a failure to observe certain clear principles taken into account in quantifying damages amounts to an appeal on a question of law. This is confirmed too in Zimbabwe United Passenger Company v Richard Christopher Daison SC 87/2002.

I believe this is a case where my upsetting of the findings of fact will be justified on the basis that the Arbitrator’s findings are irrational on the evidence placed before him. I therefore find no merit on the argument that the grounds of appeal do not amount to questions of law and should be struck out. I propose to deal with each ground on this aspect. I deal with each ground of appeal below.

Ground 1 - Date of Respondent’s finding of alternative employment

The evidence relied on by both parties for the date on which Respondent is alleged to have secured alternative employment is a letter from the new employer, Certified Commerce and Industry Personnel. It states that Respondent “was engaged by ourselves as a part-time module writer from the 1st September 2010 and was engaged on a full time basis from the 1st of February 2011 to date.”

Appellant argues therefore that Respondent was therefore effectively employed from September 2010.

Respondent argues that the Terms and Conditions of his employment with Appellant in Clause 15.1 allowed him to undertake occasional literary work and receive remuneration for such work. He therefore claims not to have been employed with effect from September 2010 but only from February 2011.

The Arbitrator found that Appellant was re-employed with effect from February 2011. I believe that such a finding of fact cannot be classified as wholly unreasonable in the light of the evidence before the Arbitrator and dismiss ground 1 of appeal.

I confirm, therefore that Respondent was fully employed in February 2011.  The part time payments can only be deducted from the amount awarded (see Olivine Industries (Pvt) Ltd v Nharara 2006 (1) 203 (S) at 206 F.

The record does not show how much such payments were. Respondent confirmed to have earned US$300 from the part time employment, at the hearing of this matter.

Ground 2 – Period of backpay

The Arbitrator awarded back pay to Respondent for a period of twenty one months reckoned from the date of reinstatement at a uniform salary of US$1 955.00. Respondent argues this was correct and cites Redstar Wholesalers v Edmore Mabika SC 52/05 which states that the relevant date to which the date on which the order of reinstatement is made.

Appellant contends that back pay and damages must at law cease to be paid at the date when an employee secures alternative employment. Reliance is placed on the cases of Ambali v Bata Shoe Company 1999 (1) ZLR 417 (S) at page 419 A and Dulys Holdings v Spanera 2005 (1) ZLR 407 at pages 409 H – 410 A.

I find favour with Appellant’s argument and hold that the Respondent’s entitlement to damages, which include backpay is calculated on the basis of his income from the date of his dismissal to the date he found employment. This is from December 2009 to February 2011. There is therefore merit in ground 2 of appeal.

Ground 3 – Salary for period of backpay

The Arbitrator used a uniform salary of US$1 955 in calculating backpay.

Respondent relies on the case of Redstar Wholesalers v Mabika supra to justify such an approach of using the salary for date of reinstatement.

Appellant distinguishes the Redstar Wholesalers v Mabika supra approach as one where the Appellant proposed to pay back pay by reference to the figure as the date of reinstatement. I was referred to other Supreme Court decisions in particular Olivine Industries (Pvt) Ltd. supra at page 206 G which states;

“The respondent can only be compensated by an amount that should be calculated at the rates applicable at the time and not at today’s rates or some future unknown rates.”

I agree with this approach as the aim of paying damages is to place the employee in the position he would have been save for the premature termination of his employment.

The evidence on records shows the salaries as follows;

Ground 4 – Salary rate for August 2011

Applicant argues that the Arbitrator erred in using a salary rate of USD1 955.00 as at August 2011, when the evidence before him showed the prevailing salary as USD1 755.00.

Respondent argues that at the hearing the Arbitrator adjusted the claimed figure of US$2 070.00 to US$1 955.00.

The arbitral award and record do not show how and why the alleged adjustment was done. I find that the decision was wholly unreasonable in the light of the papers at hand on the record.

In any event such a finding does not assist either party as I have already found that the backpay and damages should be payable to the date of securing alternative employment, which is February 2011.

Ground 5 – Propriety of the Award of damages in lieu of reinstatement

Appellant argues that it was an error in law to award fourteen months’ salary as damages in lieu of reinstatement. It is contended that since Respondent acquired alternative employment before the order of reinstatement he did not suffer any loss. The case of United Bottlers v Kaduya 2006 (2) ZLR 150 (S) was relied on to argue that by securing alternative employment, Respondent repudiated his contract with Appellant.

Respondent simply argued that the Arbitrator’s position is not a misdirection.

On this ground, I find for the Appellant and am supported by Ambali v Bata Shoe Company 1999 (1) ZLR 417 (S) at page 419 A.

“He (the employee will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have expected to find alternative employment.”

Ground 6 – Award of punitive damages through the fourteen months salary award

Appellant argues that the Arbitrator erred in describing the award for damages in lieu of reinstatement as being punitive in nature as the Appellant had refused to reinstate Respondent yet the facts show that Respondent had already secured alternative employment by the date of reinstatement.

Respondent contends that the Arbitrator merely canvassed the issue of punitive damages but did not award same.

A reading of the award and the analysis and findings of the Arbitrator shows he considered the fourteen months salary award as punitive damages. For the reasons stated above, this was an error.

Consequently the appeal succeeds with costs and I order as follows:-

The arbitral award of Arbitrator Zimuto of the 20th February 2014, be and is hereby set aside and substituted as follows –

“The Respondent be and is hereby ordered to pay Appellant the total of USD9 145 being back pay from December 2009 to January 2011 less the income from part time employment.”

Ziumbe & Partners c/o V. Nyemba & Associates – Appellant’s legal practitioners

Machaya & Associates – Respondent’s legal practitioners