Dorothy T Chirekeni v Pioneer Corporation Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/775/2016
HARARE, 4 OCTOBER 2016 &
2 DECEMBER 2016
CASE NO LC/H/APP/993/2015
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/775/2016

HARARE, 4 OCTOBER 2016 &			       CASE NO LC/H/APP/993/2015

2 DECEMBER 2016

In the matter between

DOROTHY T CHIREKENI						APPLICANT

Versus

PIONEER CORPORATION AFRICA					RESPONDENT

Before the Honourable Kudya J

For the Applicant	L T Musekiwa (Legal Practitioner)

For the Respondent    T Marume (Legal Practitioner)

KUDYA J:

This is an application for quantification of damages at the instance of the appellant employee.

Preliminary issues which had been raised on the matter were abandoned at the commencement of this hearing. To that end this judgment only addresses the merits of the quantification application.

Brief facts are that the employee got a judgment in her favour following a labour dispute with her employer. Reinstatement did not take place and the employee was thus compelled to approach the Labour Court for quantification of her award. The employee lost her job whilst she was still on probation.

The employer argues that its breach should only be satisfied by an award of three months’ salary to compensate the premature termination of the probation. The employee contends that had she worked to the employer’s satisfaction she would have expected her contract to go beyond the three month probation phase. To that end she argued that her entitlement would therefore been that of a person on a contract beyond the three months hence need to be awarded salary and attendant allowances.

A reading of the contract between the parties showed clearly that some kind of new arrangement had to be entered into had the parties gone beyond probation. The law is clear that the court has no duty to contract for the parties but merely to give efficacy to what they would have agreed on. See case of Magodora v Care International SC 191-13. It is also clear from the case of Standard Chartered v Chapuka SC 61-03 that where breach occurs within the probation phase the entitlement is only limited to such period. Instant case facts speak clearly to the fact that the breach occurred within the probation phase hence the three months’ salary tender by the employer is merited.

To read terms of a future contract would be to contract for the parties a fact which is frowned upon by the law. In the ultimate the court is satisfied that there is no merit in the applicant’s argument of extending the payment period beyond the three months offer.

IT IS ORDERED THAT

The application for quantification of damages be and is hereby allowed to the extent that the respondent is ordered to pay the applicant three months’ salary in place of the probation contract which it terminated prematurely.

Each party to bear own costs.

Musekiwa & Associates, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners