Eddington Gatsi v ARDA

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/473/14
HELD AT HARARE ON 15 OCTOBER, 2013
CASE NO. LC/H/110/05
AND 21st JULY, 2014
JUDGMENT NO LC/H/473/14
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/473/14

HELD AT HARARE ON 15 OCTOBER, 2013		CASE NO. LC/H/110/05

AND 21st JULY, 2014

In the matter between

EDDINGTON GATSI					APPLICANT

AND

ARDA								RESPONDENT

Before The Honourable B.T. Chivizhe, Judge

For The Applicant	: Mr Z. Macharaga (Legal Practitioner)

For The Respondent	: Mr C.M. Jakachira (Legal Practitioner)

CHIVIZHE, J.

The matter was placed before me as an application for quantification of damages.  Although the matter was initially set down for the 26th March, 2012 the matter was postponed for at least four occasions to allow for negotiations with a view to an out of court settlement of the case.  On the last date of hearing i.e. 16 October, 2013 the applicant was directed to place before the court proof of his claims for medical aid and school fees.  The proof was to be tendered at the latest by the 25th of October, 2013.  The respondent was also granted leave to file its response by the 1st of November, 2013.  The applicant filed its papers on the 17th of January 2014.  The respondent having filed its own response thereto on the 22nd April 2014 the court hands down its judgment in the matter.

The material background facts to the matter are as follows:

The applicant was employed by the respondent as a Marketing Manager at the respondent’s Head Office.  He was dismissed from employment in 2004 on allegations of theft.  He appealed to the Labour Court.  The court found that the dismissal was unprocedural and directed the matter be remitted for a de novo hearing.  The applicant having refused to have the matter remitted back to the respondent the Labour Court then exercised the option of conducting a de novo hearing.  Such hearing was held in 2006 but no judgment was handed down due to the illness and demise of the late President MUTEZO.  The matter having been eventually placed before KACHAMBWA J. an order was issued on 1st June 2011 directing then the respondent to reinstate the applicant and institute a fresh hearing at its discretion.  The respondent having failed to conduct such a fresh hearing the applicant then filed the present application for quantification of damages in lieu of reinstatement.

The applicant’s claim filed with the court covered the following items; basic salary, leave days, bonus, medical aid for applicant, his wife and children being 100% Private hospital Cimas, housing allowance, transport allowance, school fees for his children, National Social Security Authority contributions.  The initial claim was not particularised and was consequently opposed to by the respondent.  The proper claim filed on 15 October, 2012 covers the items which are addressed below;

Damages in lieu of reinstatement

The applicant’s claim was to be paid damages in lieu of reinstatement equivalent to ‘his current salary’ (i.e. USD 451.63 per month) multiplied by 52 months.  This claim was later reduced to a claim of US$266.25 x 52 months bringing the total to US$11 765.00.

In making his claims under this item the applicant referred to factors such as the inordinate delay in conclusion of the matter, that the respondent had at one time caused the applicant’s incarceration on criminal charges at one as a result of the allegations and therefore punitive damages were called for.

The respondent’s position was that claim is excessive and does not take into consideration the relevant factors which were laid down by the Supreme Court in many cases as determining the correct measure of damages to be awarded.  The respondent referred to cases such as Gauntlet Security Services (Pvt) Ltd vs. Leonard 1997(1) ZLR 585(S), Ambali vs. Bata Shoe Company Ltd 1999(1) ZLR 417 (S), Hampton Fokoseni vs. Lobels Bakery SC 20/04

It is common cause that applicant was dismissed from employment in 2004.  He thereafter appealed to the Labour Court. The Labour Court having ordered a de novo hearing conducted the same in 2006 before the late MUTEZO J.  Unfortunately due to the illness and eventual demise of the late Judge the matter was further delayed.  When the matter was eventually placed before KACHAMBWA J, he then directed reinstatement and in the alternative payment of damages in lieu of reinstatement.  The case is therefore clearly a unique case which has obviously been delayed in finalisation through no fault of the parties.  It also means that the applicant at all material times at least up until the determination by the Labour Court in 2011 could not have entertained any thought to seek alternative employment.  The situation however is different after 2011 where the respondent after clearly indicating its intention not to reengage him the applicant was duty bound to seek alternative employment.

I turn to the arguments by both parties.  To begin with I address the issue of back pay and benefits.  It would appear that the applicant’s entitlement to back pay and benefits (as part of damages in lieu of reinstatement) is not being contested by the respondent.  What is in dispute between the parties is the salary rate to be applied.  The parties agreed that it would be converted to US dollars but did not agree on the quantum.  The last salary rate offered by the applicant was a salary of $226.25 x 52 months.  The respondent on the other hand whilst contesting the figure did not make any offer. The court in the exercise of its equitable jurisdiction (as per the decision in Horace Nzuma & Others vs. Hunyani Paper and Packaging (Private) Limited SC 137/11) awards the salary rate of $226.25 on an unopposed basis. The total amount award is $ 11 765.00.

Cash in lieu of leave

The applicant submitted that the accrued leave days at the rate of 30 days per annum.  He therefore submitted that he should be paid from September 2004 to May 2011 a total of 7 years x 30 days = 210 days.

The respondent disputed the claim on the basis that to award him 210 days as vacation leave would place him in a much better position than he would have been had he remained in the job.

The court failed to agree with respondent’s submission on this point. The Respondent having accepted to pay the applicant back pay for the period from September 2004 to May 2011 it follows Applicant would be entitled to the leave days as claimed i.e. 210 days at the above salary rate. The total amount awarded for leave days is therefore $ 226.25 x 7 = $1 583.75.

School fees

The applicant also claimed school fees through his filing on the 17 January, 2014.  He claimed school fees in respect of two children of school going age.  The school receipts are from 2010 to 2011.  He claimed in respect of Elma Gatsi in total receipts $520.00 marked “A1” to “A11” Elmo Gatsi - $1 940.00 marked “B1” to “7”.  The total amount for both was $2 460.00. 30% of that amount was $738 which the applicant was therefore claiming.

The respondent’s position was that in regards Elma Gatsi it had verified through its internal auditors and the school’s fast copies amount claimed.  The Respondent auditors had however failed to verify certain amounts. The respondent was consequently urging the court to disregard those specific amounts.  The respondent was accepting liability in respect of Elma Gatsi to the amount of $144.00 being 30% of USD 480.00 proved to have been paid to her school by the applicant.

In respect of the other child Elmo Gatsi the respondent denied liability to refund on the basis of its policy under which Respondent only pays allowances for children from grade one upwards and does not pay for children in kindergarten or preschool.  On the basis that the claim for Elmo Gatsi relates to fees for kindergarten the respondent was not in a position to refund. The Applicant having failed to counter the Respondent’s submissions the Court accordingly awards the claim in respect of Elma Gatsi for $144 and dismisses the claim in respect of Elmo Gatsi.

Medical Aid

The applicant also filed a claim for medical allowance based on the receipts and medical cards filed on the 17th of June 2014.  The total claim is not shown.  The respondent’s position was that the Applicant was removed from CIMAS from 31 July 2005 (proof tendered).  Respondent had offered to pay actual amounts expended by applicant.  Upon verification of the fees paid to the Adventist Health Clinic the institution had said they did not have receipts for the period 2009 – 2011.  It was the Respondent’s auditors’ recommendation that the applicant should have produced certified receipts before a commissioner of oaths rather than medical cards.

The respondent challenged the evidence tendered by the applicant on the basis that they were concocted documents.  Secondly, the visits to the doctor over the period were (78) unbelievable.  The respondent urged the court to disregard all the evidence under the claim as being doctored and unrealistic.

It is a trite position at law that is for the party asserting a claim to prove the claim. See First Mutual Life Limited vs. Jackson Muzivi S-09-07. The applicant in this case failed to produce positive proof in the form of actual receipts. The evidence of medical cards was inadequate for that purpose. The claim is consequently dismissed as unsubstantiated.

Interest

The applicant also claimed interest at the rate of 5% per annum “compounded annually”.

The respondent’s position was that in the absence of any justification for the claim of interest to be awarded on the arrear salary due in respect of the period prior to the advent of the multicurrency regime in early 2009,  his claim ought to be dismissed.  The applicant ought to prove the nature and rate of interest. The court agreed entirely with the Respondent on the point.

In the circumstances it is hereby ordered as follows;

The Applicant is awarded a total of $13 492.75 in damages to cover back pay, cash in lieu of leave, school fees.

The claims for medical aid charges/interest are dismissed as unsubstantiated.

Mugiya & Macharaga Law Chambers – Applicant’s legal practitioners

Jakachira & Company – Respondent’s legal practitioners