George Manyika v Shamva Gold Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/23/2013
HELD IN HARARE, JANUARY 22, 2013
CASE NO. LC/H/185/08
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/23/2013

HELD IN HARARE, JANUARY 22, 2013		CASE NO. LC/H/185/08

In the Matter Between

GEORGE MANYIKA					       	APPLICANT

And

SHAMVA GOLD MINE					RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPLICANT     		: Mr W. Ndhlovu (Trade Unionist)

FOR ALL RESPONDENT  		: Mr T. Nleya (Legal Practitioner)

MAKAMURE E.,

This is a matter in which the applicant was wrongfully dismissed from the respondent’s employ.  This Court ordered that the applicant be reinstated or alternatively that the respondent, awarded the applicant the appropriate damages in lieu of reinstatement.  The respondent did not reinstate the applicant.  The parties failed to agree and the parties approached the Court for quantification of damages.

The applicant worked for the respondent company for about thirty (30) years before the wrongful dismissal in July 2008.  It is common cause that at the time of his dismissal the economic environment was harsh.  The Zimbabwe Dollar which was then in use fluctuated in an unpredictable manner.

The applicant was employed as a gang leader.  As such he was a Supervisor and also conducted repair work for the respondent.  The applicant has made his claim in US dollars and gave evidence in support of the claim.  He has no documentary evidence as proof of his claim.  Equally the respondent submitted a table of figures.  There is no documentary evidence in support of that table of what the respondent considers to be what is due and owing to the applicant.  Both parties have referred the Court to authority in support of the claim for which the Court is grateful.

It is trite that once a person has been dismissed whether wrongfully or rightfully they should seek alternative employment in order to mitigate their damages. (See Ambali v Bata Shoe Company Ltd 1999(1) ZLR 417(S).

In an effort to mitigate his damages the appellant stated in evidence that he sought such alternative employment at two different mines.  He was not successful.  He has therefore been selling ‘juice cards’ (cards which contain airtime for use on cellular ‘phones’) in order to sustain himself.  He stated under cross examination that his wife buys clothes for re-sale and earned two to three hundred US dollars (USD200 – USD 300.00) per month.  Their joint efforts enabled him to pay for rent and general upkeep for his wife, two school going children and himself.

He claims a total of USD 700.00 for the period July 2008 to January 2009 at the rate of USD $100.00 per month.  The rest of his claim is as follows:

February 2009 to December 2009		USD126.88 x 11 = USD1 395.05

January 2010 to December 2010		USD11.09 x 26 x 12 months = USD2 767.44

January 2012					USD11.86 x 26 days = USD308.36

Leave days					USD308 x 2 months = USD616.00

Damages in lieu of reinstatement		USD308 x 36 months = USD11 196.36

His total claims amounts to USD20 474.16.

There is however no explanation as to why different daily rates were used in the claim.

The applicant’s   claim is for back pay from date of dismissal to date of judgment.  In Kuda Madyara v Globe and Phoenix Industries (Pvt) Ltd t/a Ran Mine 2002(2) ZLR 269(S) (Madyara) the Supreme Court stated the following:

“As far as back pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, where the order of reinstatement has a retrospective effect.  In my view, both of them are entitled to back pay and benefits.  The only difference between them is that one gets his job back whilst the other is paid damages for the premature termination of his employment contract.”

The Madyara case (above) makes the position of reinstatement and the alternative of damages very clear.  Thus in the present matter the applicant is entitled to his back pay from July 2008 to January 2012.  As the Madyara case shows, there may be other issues for consideration in making an order – e.g. the question of loss of prospects of promotion.  The applicant herein is approaching retirement.  This is a factor which should be considered in awarding damages.  The applicant has claimed the equivalent of 36 months’ salary as damages.  On the other hand the respondent is of the view that the applicant could have secured alternative employment within a period of eight months.  The employer has the onus to prove that the employee could have secured alternative employment or in fact did secure alternative employment (see Godfrey Nyaguse v Mkwasine Estates SC 34/2000).  In “Annexure ‘A’” to the respondent’s Heads of Argument the respondent has calculated eight (8) months’ earnings as adequate compensation for the applicant.  Again no documentary evidence has been submitted in both the daily and monthly rates for a “gang leader” which is the post the applicant held at his dismissal.

There is absolutely no common ground between what the applicant claims as daily rates and what the respondent offers as daily rates.  For example, the applicant claims USD11.09 or USD11.86 a day while the respondent pegs the daily rates at USD4.48.  If the haggling about the figures continues this matter will never be completed.  As it is, the delay occasioned is bad enough for both parties.  This matter must be completed.  There is need for finality to litigation (See Ndebele v Ncube 1992(1) ZLR 288(S) @ 290).

In the interests of finality to litigation this Court will use the average given by the parties as the appropriate daily rates.  This is USD4.48 + USD11.86 /2 = USD16.34 /2 = USD8.17 which the Court will round off to USD8.00.  Having stated the above, I am of the view that the claim by the applicant appears to have taken consideration of all the relevant issues while the computation made by the respondent appears limited.

The applicant worked for the respondent for a considerable period.  Thereafter, his employment was prematurely terminated.  He is approaching retirement and may not find it easy to secure alternative employment.  I am satisfied, having considered his evidence that he did what was practical to mitigate his damages.  On the other hand, I am of the respectful view that 8 months earnings will not be adequate compensation for back pay and damages.

In the circumstances applicant is granted the following::

July 2008 to January 2009			USD100 x 7 = USD700.00

February 2009 to December 2009		USD8 x 26 x 11 = USD2 288.00

January 2010 to December 2010		USD8 x 26 x 12 = USD2 496.00

January 2011 to December 2011		USD8 x 26 x 12 = USD2 496.00

January 2012					USD8 x 26 = USD208.00

Leave days (USD 240/30 day month)	USD8 x 60 days = USD480.00

Total 						USD8 188.00

Damages 36 months @ USD240/month = USD8 640.00

Grand total					USD 17 308

His total claims is seventeen thousand three hundred and eight US dollars (USD 17 308.00).

Accordingly, it is ordered that the respondent awards applicant the amount of USD 17 308 as damages in lieu of reinstatement.

Associated Mine Workers Union of Zimbabwe, Representatives for the Applicant.

Gill, Godlonton and Gerrans, Legal Practitioners for the Respondent.