Church of Jesus Christ v Godfrey Munyamana

IN THE LABOUR COURT OF ZIMBABWE                JUDGMENT NO. LC/H/162/2013
HELD AT HARARE ON 22 MARCH, 2013                       CASE NO. LC/ H/747/2011
In the matter between



CHURCH OF JESUS CHRIST                                 –          Appellant
And

GODFREY MUNYAMANA                                      –          Respondent




Before The Honourable L. Matanda-Moyo, President
For Appellant      - W. Magaya (Legal Practitioner)
For Respondent     - L. Mungeni (Legal Practitioner)


MATANDA-MOYO, L.

      Appellant raised a point in limine that the Respondent was barred.

Appellant submitted that it served its Heads of Argument upon the Respondent

on 16 February 2012. Respondent was obliged to file its Heads of Argument

within 14 days of receipt of Appellant’s Heads. He did not do so. Accordingly he

is barred and should not be heard. The Respondent argued that the Appellant

filed its Heads prematurely before the Registrar had issued a notice to file a

response upon the Respondent. If the issue before me was that Respondent

failed to file its notice of response on time I would have been inclined to agree

with Respondent’s submissions.      However Respondent agreed that he was

served with Appellant’s Heads of Argument on 16 February 2012. In terms of

the rules, it is such service of Heads of Argument which triggers the running of

the dies induciae within which the other party should respond and file its own

Heads. Once Respondent received Appellant’s Heads, he had 14days to file his
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own Heads of Argument.        He failed to do so.     I agreed with Appellant’s

reasoning that Respondent was barred and could not be heard.            I then

proceeded to hear Appellant on the merits of the appeal.



      This is an appeal against the decision of the Arbitrator, reinstating

Respondent to his former position without loss of salary or benefit.

Alternatively the Arbitrator had ordered Appellant to pay to the Respondent the

sum of $93 903-00 as damages in lieu of reinstatement. The grounds of appeal

are that;



      1)the Arbitrator erred in awarding damages beyond the period that

      Respondent was gainfully employed

      2)the Arbitrator erred in quantifying damages without hearing evidence.

      3)the Arbitrator erred in placing the onus to prove mitigation of damages

      on the employer.

      4)the Arbitrator erred in awarding damages beyond the date Respondent

      took up employment with another company.



Appellant prayed for the setting aside of the arbitral award.



      The brief facts are that the Respondent was employed by the Appellant as

a Facilities Supervisor. He was dismissed from employment on 4 December

2009 after an enquiry on his performance found that Respondent’s performance

was not satisfactory.    Aggrieved by such dismissal Respondent referred the

matter to a Labour Officer for conciliation. The Labour Officer referred the




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matter for arbitration, resulting in the award which is the subject matter of this

appeal.



          This appeal is against the quantum of damages granted in favour of the

Respondent by the Arbitrator. The Appellant submitted that the Arbitrator erred

in not considering backpay as part of damages up to the date the Respondent

could have got a new job with reasonable effort.



          Our law is clear that backpay forms part or the bulk of the damages. See

Leopard Rock Hotel Company (Pvt) Limited vs Van Beek SC6/2000 where the

Supreme Court held that;
          “Backpay is thus a concept associated with reinstatement. If an employee is reinstated she
          will normally be awarded backpay. If she succeeds in proving wrongful dismissal but is not
          reinstated, she will be entitled to “damages” a major element of which will be backpay.
          ------------. It seems to me that backpay and damages are indeed different concepts but only
          in the sense that “damages” is a wider concept. It will normally include backpay.’’


See also TelOne (Pvt) Limited vs Zulu 2005(1) ZLR 133(S).



          Appellant argued that the Respondent who was dismissed on 04

December 2009 secured full time employment with his own company

immediately after his dismissal. As a result his claim for damages should have

failed.     The Arbitrator found that the Respondent was indeed employed by his

own company immediately after the dismissal.                       Once he had made such a

finding the onus was on the Respondent to show that he earned less than what

he was receiving when he was employed by the Appellant. The Respondent

failed to discharge such onus. The Arbitrator fell into error in finding that the

onus to prove Respondent’s earnings were on the Appellant. Appellant indeed

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showed that Respondent was employed by his company. The presumption is

that he earned an equivalent or more salary than what he was being paid by the

Appellant. Accordingly the Respondent suffered no damages as a result of the

wrongful dismissal.



      Accordingly the appeal succeeds and the Arbitrator’s award is set aside

with no order as to costs.




Mawere and Sibanda – Appellant’s Legal Practitioners

Mungeni and Muzvondiwa- Respondent’s Legal Practitioners




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