Horseborn Ndlovu v Jena Mines

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/433/13
HELD AT HARARE ON 9TH MAY & 27TH SEPTEMBER 2013
CASE NO. LC/H/145/2005
JUDGMENT NO. LC/H/433/13
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/433/13

HELD AT HARARE ON 9TH MAY & 27TH

SEPTEMBER 2013						CASE NO. LC/H/145/2005

In the matter between

HORSEBORN NDLOVU			–	Appellant

And

JENA MINES				–	Respondent

Before The Honourable B.S. Chidziva, President

For Appellant : Mrs N.P.Munangati(Legal Practitioner)

For Respondent: J.R. Tsivama (Legal Practitioner)

CHIDZIVA B.S.,

This is an application for quantification. The Applicant has given it the title “Quantification for arrear salaries, Benefits and damages in lieu of Reinstatement”.

The Applicant is claiming a total sum of US$272 908,80 that is:

Backpay and arrear salaries	-  $152 540,00

Education allowance		  	-  $35 970,00

Entertainment allowance	    -  $1007,60

Location Allowance		    -  $21 582,00

Passage benefit				_  $7 200,00

Domestic Worker Allowance		-  $13 380,00

Housing Allowance				-  $15 750,00

Vehicle benefit				-  $16 800,00

Cimas Medical Aid				-  $ 8 856,00

Leave Days bonus			-  $15 454,00

The Applicant also prayed that the Respondent should pay for costs of suit.

The Applicant has told the court that the basis of this application is that:-

On the 11th November 2010 Honourable President MAKAMURE ordered that:-

The disciplinary proceedings convened by the Respondent on the 5th of August 2005 be set aside.

The Respondent was ordered to convene fresh disciplinary proceedings.

The disciplinary proceedings were to be held within 60 days of the order.

Applicant was to remain on suspension without loss of salary benefits pending the completion of the matter.

(2	The Respondent failed to convene fresh      disciplinary proceedings within the time frame provided for by the Court and would not reinstate and did not reinstated and pay benefits and salaries due.

(3)	On the 1st of February 2012 the parties agreed to come to a mutual understanding in relation to damages for loss of employment and quantum thereof

(4)	Applicant is of the view that he is still employed by the Respondent and that he is still entitled to arrear salaries and benefits.

The Respondent in response has made an offer of US$59 400,00 at a salary of US$800,00 per month. The breakdown was given as follows:-

Salaries and benefits due to Horseborne Ndlovu from July 2004 to July 2009 -US$48 000,00.

Add (i) 6 months salaries at US$1 900 per month as damages in lieu of reinstatement  = $11 400,00

The Respondent also submitted that:-

The employee is at law obliged to mitigate his losses following an unlawful dismissal. There is no reason why Mr Ndlovu could not have raised an amount of $300,00 per month in mitigation of his losses and given the free time at his disposal since his dismissal in 2004.

Mr Ndlovu was a mere manager and possess both professional qualifications and experience in Mining. There is no reason why Mr Ndlovu could not secure alternative employment requiring his expertise and experience paying first as well if not better following the dismissal or refusal to reinstate. The offer of an equivalent of (6) six months salary is made on that understanding.

It is common cause that:-

Applicant was dismissed by the Respondent on the 5th of August 2003

When the parties appeared before Honourable B. CHIVIZHE on the 29th of September 2008 it was held that fresh disciplinary proceedings should be conducted

The Respondent could not hold fresh proceedings

Parties later agreed to negotiate damages in lieu of reinstatement.

The Respondent has however raised a point in limine and stated that this Court has no jurisdiction as the matter did not came through a Labour officer as provided for in section 93 (7) of the Labour Court Act [Cap 28:08].

The Respondent has stated that this is a fresh dispute that the Appellant has against the Respondent.

This matter has not been concluded for almost a decade. It is a trite principle of law that litigation should come to finality. It is high time that this matter should be brought to rest. Furthermore in the case of Dalny Mine vs Banda 1999 (1) ZLR 220 it was held that Labour matters should not be decided on technicalities. The parties have already agreed on quantifying damages in lieu of reinstatement. According to the Applicant he decided to approach this Court after the Respondent had shown that he was not serious in discussing the damages.

The Respondent could not conduct another hearing due to lack of proceedings of the previous hearing. The Respondent could not just dismiss the Appellant without evidence of misconduct against Appellant. The parties have not agreed on the quantity of damages as shown by what the Applicant is claiming and what the Respondent is offering.

Section 89 (s) of the Labour Act [Cap 28:01] in relation to damages states that:-

“In the case of an application made in terms of subparagraph (ii) of subsection (7) of section 93 make an order for any of the following or any other appropriate order

Back pay from the time when the dispute or unfair Labour practice arose

Reinstatement on employment in a job provided that:-

any such determination shall specify an amount of

damages to be awarded to the employee concerned as

an alternative to his reinstatement or employment.”

During the period between 23 July 2003 when the Applicant was dismissed and 9th of February 2009 when the currency that was operating in this country was the Zimbabwean Dollar. This was the Legal tender which the Applicant was supposed to receive if he was working for the Respondent. The Applicant in its submissions has told the Court that it has abandoned the Zimdollar and chosen to be compensated for the period 2009-2013.

To start with once a contract is entered into it’s a trite principle of Law that parties have to adhere to the terms of the contract in full.

This therefore means that the Applicant has to be paid in Zimbabwean dollars.

The Applicant has not stated why he chose to abandon the Zimdollar Era and claimed for damages from 2009. He has not explained to this Court why he is claiming US$6600,00 per month as damages in lieu of reinstatement. The Applicant has not give any explanation for the (2) two year period.

Applicant’s status between 2004 and December 2008 was of a dismissed employee. Being a professional and also the fact that he is a mine manager it sounds incredible that he just stayed at home without mitigating his loss. From the papers filed of record he has not explained what he was doing during this period.

In the case of Ambale vs Bata Shoe Company 1991 (1) ZLR 417 it was held that a dismissed employee has the duty to mitigate his losses by seeking alternative employment.

The Applicant has also submitted that it should take two years to secure alternative employment. This therefore means that the Applicant should have searched and secured employment by 2006.

In the case of Nyaguse v Mkwasine Estates 2001 (1) ZLR 571 at 574 McNALLY JA had this to say:-

“I do not with respect agree with Traverso J   in Toeren vs Stellabosh University 1996 (1) SA 197 when he says:-

Why should the Respondent, who in breach of its obligations in terms of the contract of employment, benefit from that very breach?. My answer to that is that the employer does not benefit It is excused from paying any employee who has not worked for it. And the reason is that the employee has been able to earn at least as much by working elsewhere…………….”

This therefore means that for all this time the Applicant had the duty to mitigate his loss be it through employment by another company or through self employment. Eighteen months was adequate for him to secure alternative employment.

The Applicant has not told the Court what he was doing between 2004 and 2008. There is also no evidence that the Applicant tried to look for alternative employment after 2009.

The Respondent has submitted that the Applicant could have been earning US$800,00 per month from 2009 salaries.

Prior to April 2009 employees were being paid in Zimbabwean dollars. This therefore means that legally for this period the Applicant was supposed to be paid in Zimbabwean dollars. The Respondent has thus given a reasonable offer of US800,00 per month for the period July 2004 to June 2009. However 4 months salary at US$1900,00 per month as damages in lieu of reinstatement may be too short a period. Given Applicant’s profession he should have secured another job in (12) twelve months time.

In view of the foregoing therefore it is hereby ordered that the Respondent pays damages as follows:-

Back – Pay  July 2004 to June 2009

US$800.00 x 12 months x 5

= US$48.000.

Damages in lieu of Reinstatement

US$1900,00 per month x 12 months

= $22 800,00

Total		=	US$48 000,00 + 22 800,00

US$70,800,00

Each party to bear its costs.

Munangati & Associates – Applicant’s Legal Practitioners

Sawyer & Mkushi – Respondent’s Legal Practitioners