Errand Management Services v Lazarus Riva

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/596/16
HELD AT HARARE 5 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/596/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/596/16

HELD AT HARARE  5 FEBRUARY 2016			CASE NO LC/H/726/15

& 23 SEPTEMBER 2016

In the matter between:

ERRAND MANAGEMENT SERVICES			Appellant

And

LAZARUS RIVA					Respondent

Before The Honourable Makamure, J

For Appellant			Ms T Mberi (Legal Practitioner)

For Respondent		P Mabundu (Legal Practitioner)

MAKAMURE J:

This is an appeal against an award quantifying damages due to the respondent, in lieu of reinstatement.

Ordinarily such an award is not appellable.  In Oliver Chiriseri v Plan International SC 56/02 Supreme Court stated that

“A ruling by the tribunal on the quantum of damages is a ruling on fact and therefore not appealable, unless it is wholly unreasonable.”  See also Leopard Rock Hotel Co (Pvt) Ltd v van Beek 2000 (1) ZLR 251 (S).

This appeal is on the following grounds:

‘1.	The Honourable Arbitrator erred at law in awarding damages in lieu of reinstatement equivalent to thirty (30) months’ salary when there was a no factual or legal basis for doing so.

The Honourable Arbitrator erred grossly at law in finding that the respondent had mitigated his damages whereas such findings were not supported by any evidence

The Arbitrator erred at law by misinterpreting case authorities that had been placed before him.  In particular, the arbitrator erred by finding that there was a component of damages in lieu of reinstatement known as ‘additional compensation.”’

When parties appeared before the Arbitrator, the respondent put forward a claim of a total of thirty three thousand two hundred and sixty four US Dollars (USD 33 264.00). The Arbitrator thereafter awarded him a total of twenty three thousand one hundred US Dollars

(USD23 100.00) made up of 25 months’ salary at the rate of USD924 per month as damages for loss of employment.  The operative word here is “damages for loss of employment”.  The appellant in ground 3 has taken issue with the Arbitrator’s use of the word “additional compensation.”  What I understand is whether or not the word compensation is used, the damages are infact compensation for premature loss of employment.  The Learned Arbitrator relied on the case of Madhatter Mining Company v Marvellous Tapfuma SC 51/14.

In Madhatter Mining (above) the Supreme Court granted the employee therein 12

months’ salary as damages in lieu of reinstatement.  In the present case the Arbitrator awarded respondent the equivalent twenty five (25) months’ salary as damages for loss of employment.  The employee had accumulated 10 months’ salary in back pay.  According to the Arbitrator five out of the ten months back pay was paid.  This means that he still had 5 months  arrear salaries to be paid.  Arrear salaries are his entitlement which cannot be the subject of debate. The appellant made an offer for the equivalent of 15 months’ salary as sufficient compensation. This would include five months arrears. This means that  compensation for loss of employment is the equivalent of 10 months’ salary.

When one considers that the respondent was still owed some back-pay, it is

appropriate that he gets his back pay plus the appropriate compensation for premature loss

of employment.

The first ground of appeal suggests that there was no basis for the Learned Arbitrator’s findings.  Infact there was.  The Learned Arbitrator was able to make calculations on the basis of evidence before them. In the second ground of appeal, the  appellant is aggrieved that the respondent did not mitigate his loss. However, it is clear from the award that he made efforts to secure alternative employment but was not successful.  It is an established principle of our law that, it is the employer’s duty to show or prove that an employee earned or should have earned an income from some source. (See Geoffrey Nyaguse v Mkwasine Estate SC 34/2000). Obviously the employee is not expected to sit and wait till the dispute has been resolved.  (See Ambali v Bata Shoe Company Limited 1999 (1) ZLR 417(S)). Thus I find that there is no merit in that ground. In the third ground issue is taken with interpretation of authorities by the Learned Arbitrator. In the arbitral award emphasis was placed on the Madhatter Mining case.  I believe case law or precedent is there to give guidance and not necessarily to be adopted in toto. Each case is determined according to its own merits taking into account guidance given by precedent. The court will therefore be guided by the Madhatter Mining case. However, a different figure will be granted taking into account the circumstances peculiar to the present case. For that reason, I find that in the interests of justice, it is necessary to interfere with the award granted by the Learned Arbitrator.

While therefore the Arbitrator ordered 25 months’ salary as damages for loss of employment, it is my considered view that the respondent be granted the equivalent of twenty months’ salary inclusive of the five months’ back pay.

In view of the foregoing I find that there is merit in the third ground of appeal.

In the result the appeal is allowed.

The award by the Arbitrator is set aside and substituted with the following:

“Respondent is ordered to pay the Claimant the sum of USD18 480 being 20 months’ salary at the rate of US$924.00 per month together with interest at the prescribed rate with effect from 30 September 2014’’.

Mberi Chimwamombe Legal Practice, appellant’s legal practitioners

Mabundu Law Chambers, respondent’s legal practitioners