David Nyamukondiwa v Biddulphs Removals & Storage

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/168/2014
HARARE, 11 MARCH 2014 &
28 MARCH 2014
CASE NO LC/H/517/2012
JUDGMENT NO LC/H/168/2014
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/168/2014

HARARE, 11 MARCH 2014 &			CASE NO LC/H/517/2012

28 MARCH 2014

In the matter between:

DAVID NYAMUKONDIWA						APPLICANT

Versus

BIDDULPHS REMOVALS & STORAGE				RESPONDENT

Before The Honourable E Muchawa  :  Judge

The Appellant in default

For the Respondent :W Chirongoma (Legal Practitioner)

MUCHAWA J:

This is an application for quantification of damages following an order of this court whose operative part reads:

“The respondent having conceded to the appeal, the appeal be and is hereby allowed. The director’s verdict be and is hereby quashed and the Disciplinary Committee’s verdict be and is hereby confirmed.

The appellant be and is hereby reinstated to his original position without loss of salary and benefits.

In the event that reinstatement is no longer possible the respondent pays the appellant damages the quantum of which is to be agreed between the parties upon failure of which either party approaches this court for quantification.”

The applicant was employed by the respondent on a fixed term contract for the period 11 May 2012 to 9 August 2012 when he was found guilty by the Disciplinary Committee on 29 June 2012. Following the above order, the applicant put in an application for assessment of damages. His claim is summarized as follows:

Outstanding salaries from the date of dismissal i.e. 13 July 2012 to date of judgment 22 May 2013  -    $2 561-00

Outstanding housing allowances for ten months - $  370-00

Notice pay equivalent to three months’ salary - $  742-50

Housing allowance for notice period           - $  111-00

Gratuity for ten years worked                 - $  371-25

Leave days accrued from date of termination   - $  174-00

to date of judgment

Damages being three years’ salary             - $8 910-00

Grand Total								- $13 239-75

In response the respondent alleges that the applicant was offered reinstatement and he declined the offer. Further it is argued that the applicant was on a fixed term contract and his claim cannot go beyond the period of his contract. It is conceded that the applicant’s entitlement is only for the twenty-three days which were left for his contract to run.

The respondent was in default on the date of hearing, despite proper service. I proceeded with the hearing on merits.

From the submissions made by the respondent, it is clear that the starting point is the applicant’s contract in order to establish his entitlements.

I was referred to the case of Chikonye&Anor v Peterhouse 1999 (2) ZLR 329 (SC) which states:

“Further, that the contracts were of fixed duration. Unless the contracts were renewed by the school, the appellants ceased to be employees. There was no obligation on the school to offer them permanent positions.”

The applicant’s contract specifically states that it shall expire on the agreed date of termination and that there shall be no requirement for notice to be given.

I find that the applicant was not on a contract without limit of time and his fixed term contract was expiring on 9 August 2012, some twenty three days later. His claim is therefore misplaced in its entirety as it is based on the assumption of a contract without limit of time. Some of the claims are not even derived from his contract.

In particular, the claims for outstanding salaries from date of dismissal to date of judgment and for leave days from date of termination to date of judgment, have no legal basis as they go beyond the date of termination of contract.

There is no legal basis for the notice pay and housing allowances as these are specifically excluded by the applicant’s contract.

I further find that the applicant is not entitled to damages in lieu of reinstatement for three years. He was offered reinstatement and he declined this. The employer was not obliged to employ him beyond the contract period. In saying this I note that damages are meant to compensate one for the loss of any benefits to which he was deprived as a result of the wrongful termination. (See Ambaliv Bata Shoe Company Ltd 1999 (1) ZLR 417 (S) at 417 D).

The applicant being in default did not lead any evidence to establish his entitlement to each of the amounts claimed. The respondent however conceded that the wages for the remaining twenty three days amount to $198-70 calculated at $1-80 for eight hours per day multiplied by twenty-three days as in the contract before me.

I therefore order as follows:

The application being without merit is dismissed with costs save for the following:

That the respondent should pay US$198-70 to the applicant being wages for the remaining twenty three days of the fixed term contract.

C Kuhuni Attorneys, respondent’s legal practitioners