Garikai Kamanga v Prince Edward School Development Association

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/436/16
HELD AT HARARE 2 JUNE 2016
CASE NO
JUDGMENT NO LC/H/436/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/436/16

HELD AT HARARE 2 JUNE 2016				CASE NO LC/H/580/15

& 22 JULY 2016

GARIKAI KAMANGA						Appellant

PRINCE EDWARD SCHOOL DEVELOPMENT 			Respondent

ASSOCIATION

Before The Honourable G Musariri, Judge

For Appellant			P Mbano, Attorney

For Respondent		F Rudolph, Attorney

MUSARIRI J:

On 5 June 2015 Arbitrator T Chamisa issued an arbitration award.  He ordered respondent to pay appellant a total sum of +US$11 000.00 in respect of back-pay, cash in lieu of leave and damages for loss of employment.  Appellant then appealed to this court against the award.  Respondent opposed the appeal.

The major bone of contention was the rate (monthly salary) used by the arbitrator to calculate the damages.  Appellant stated that his back-pay should be reckoned in two phases.  The 1st covers the period January 2013 to May 2014.  He stated that in addition to his regular wage he received incentives.  These boosted his earnings to US$764.00 per month.  The 2nd phase covered the period June to July 2014.  At that time the incentives had been phased out.  On the other hand respondent argued that the only evidence on the point was the salary slip filed of record.  It showed a net monthly salary of US$427.00

The arbitrator found thus,

“What is in dispute is the actual earnings the claimant was getting.  The claimant has stated that he was earning a basic salary of USD470.00 according to the contract of employment which no copy was attached as proof.

The respondent on the other hand submitted that the claimant was earning a basic salary of USD258.00 per month to which a copy of the claimant’s copy of the payslip was attached for the month of January 2012.  On the payslip copy transport and housing allowances was USD65, incentive was USD135 and cushion allowance was USD23 bringing the total earning to USD481 with USD54 as deduction.  In as far as the tribunal is concerned the claimant’s basic salary & benefits is therefore USD427.00”

The arbitrator clearly based his finding on the evidence available.   Appellant  failed to produce credible proof.  He relied on what he called payslips of his colleagues.  The names of the persons on the payslips were disguised by dark ink.  We do not know who those persons are, where they worked or in what capacity.  Such anonymous sources cannot amount to credible proof of appellant’s averment.  I am satisfied with the arbitrator’s finding on this point.

The grounds of appeal also alleged error in the calculation of leave days.  However in his closing speech, appellant’s attorney conceded that the arbitrator’s calculation of leave days could not be faulted.

Lastly appellant argued that the arbitrator used the wrong formula in calculating the damages in lieu of reinstatement.  The arbitrator awarded 10 months’ salary as damages.  Appellant wanted more.  He claimed damages composed of notice pay, severance allowance, gratuity and relocation allowance amounting to a total sum of USD54 500.  It is apparent that appellant was guided by what was usually awarded as a retrenchment package.  He was clearly misguided in ignoring principles laid down by precedents dealing with damages.  The principle is to award damages covering a period it would reasonably take the dismissed employee to find alternative employment.  In casu the arbitrator reckoned that period as 10 months.   Such an assessment is consistent with precedents.  On that basis I consider that the award in its totality is unassailable.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J U D G E