Fadzai Marovanyika N.O. v National Pharmaceutical Company (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/27/23
HELD AT HARARE 11 January 2023
CASE NO LC/H/858/22
& 13 January 2023
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/27/23

HELD AT HARARE 11 January 2023	CASE NO LC/H/858/22

& 13 January 2023

In the matter between:

Fadzai Marovanyika N.O.

And

National Pharmaceutical Company (Pvt) Ltd

Taguel Mtombeni

Applicant

1St Respondent 2nd Respondent

MURASI J:

This is an application for confirmation of a draft ruling in terms of section 93 of the Labour Act, (Chapter 28:01), as amended.

The facts, which are largely common cause, are that second respondent was employed by first respondent on a fixed term contract of employment. This contract was supposed to terminate on 31 December 2024. However on 14 July 2020 first respondent wrote to second respondent informing him of the termination of the said term of contract. This letter is at page 56 of the record. Dissatisfied with this development, second respondent approached Applicant's offices for redress. Applicant found in second respondent's favour and made an award for payment of damages for the unexpired period of the contract. Applicant has therefore sought confirmation of the draft ruling as required by statute.

In oral submissions, Applicant stated that she abided by documents filed of record and had nothing to add or subtract and prayed for the confirmation of the draft ruling.

JUDGMENT NO LC/H/27/23

Mr. Dube, for the first respondent, began his submissions by a reference to the provisions of the Act. He stated that the statute allowed the termination of a fixed-term contract by way of giving notice. He relied on paragraph (c) of section 12 (4a). He further stated that the Applicant was therefore incorrect in making the finding that first respondent had unlawfully terminated second respondent's employment contract. The court referred Mr. Dube to the findings made by the Applicant as reflected at pages 22 and 25 of the record. No meaningful submissions came from Mr. Dube as regards the findings referred to above.

As far as the amount granted by the Applicant was concerned, Mr. Dube submitted that Applicant had not taken the issue of mitigation into consideration and this clearly would have an effect of the final sum awarded in the circumstances. He also raised the issue that the award made in respect of Medical Aid was not correct in terms of the law. He submitted that the employer's contributions are made to the service provider and if the employee has any claim in this respect, he should produce evidence of the expenditure he had incurred in this respect. I should add that Mr. Dube also cross examined the second respondent on the issue of mitigation when the second respondent was called to give evidence on that issue. He submitted that second respondent had neglected his duty to mitigate in the circumstances.

Mr. Mutema stated that he agreed with the determination made by the Applicant save for the fact that the Applicant had not factored in the issue of interest which had been requested by the second respondent. Mr. Mutema also made a concession on the issue of medical aid in that the award was not properly made. The Court asked Mr. Mutema whether the second respondent was available in order to clarify the issue of mitigation. He confirmed that the second respondent was present.

The second respondent was duly sworn in and stated that he had tried to find employment but to no avail and at the moment he was relying on his wife for upkeep. He further stated that due to the economic environment, he had been unable to secure alternative employment and had made several applications and attended several interviews. He stated that he held an MBA degree and in some instances he had been informed that he was over qualified. He stated that he had even crossed the border into South Africa in search of employment but because of the prevailing social climate, he had been unable to find any.

ANALYSIS

As stated earlier, most of the issues are common cause. I have already alluded to the submissions made by Mr. Dube as regards the findings made by the Applicant. At page 22 of the record, Applicant refers to the provisions of the employment contract and at page 25 she further made the observation that first respondent had not complied with the provisions of the contract of employment when it terminated that contract. There is no denying that this finding is correct having regard to the letter of dismissal referred to

JUDGMENT NO LC/H/27/23

elsewhere in this judgment. The Court is therefore of the view that the determination made by the Applicant that the dismissal was unlawful cannot be interfered with.

I will proceed to deal with the quantum of damages. This Court made it clear during oral submissions that the quantification should have been made in Zimbabwe Dollars and as such the column dealing with the figures in United Dollars should be ignored. I should also add that both parties were in agreement that the award of damages for the unexpired term of the fixed term contract was correct in terms of the law.

The second respondent stated that he was unable to mitigate damages after dismissal due to the economic situation in the country. The Court takes judicial notice of the fact that the current rate of unemployment is high. Many qualified persons are unable to find formal employment. Many, as a result, have entered the informal sector of the economy and the figure in the informal sector has been given as being as high as 80%. I am of the view that it cannot strenuously be argued that second respondent should have been able to find alternative employment in the circumstances.

The concession made by Mr. Mutema as regards the award in respect of Medical Aid was proper in the circumstances and it should be expunged from the total figure arrived at. Mr. Mutema stated that Applicant had not factored in the interest requested for. Applicant's response was that no justifiable ground had been advanced by second respondent. Mr. Mutema did not strenuously argue for its inclusion and I tend to find favour with the decision of the Applicant that no justifiable grounds were advanced for its award.

In the circumstances, the draft ruling ought to be confirmed subject to the amendments referred to above.

The Court makes the following Order.

The application for confirmation of the draft ruling is hereby granted.

The draft ruling of Fadzai Marovanyika N.O. dated 8 September 2022 is confirmed subject to the deletion of Item 7 in respect of Medical Aid. For the avoidance of doubt, First Respondent is hereby ordered to pay to Second respondent the total sum of ZWL 12 804 277-56.

The above stated amount shall be paid with effect from thirty (30) days from the date of this Order.

Each party to meet its own costs.

Dube, Manikai & Hwacha-			First Respondent's legal practitioners

Stansilous & Associates-			Second Respondent's legal practitioners;