Isaac Gambe and Christian Mutimuri v Costham Trading

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/351/24
HARARE, 27TH FEBRUARY
CASE NO LC/H/762/22
2024 AND
29TH AUGUST, 2024
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IN THE LABOUR COURT OF ZIMBABWE

HARARE, 27TH FEBRUARY

2024 AND
29TH AUGUST, 2024

ISAAC GAMBE

AND

CHRISTIAN MUTIMURI

AND

COSTHAM TRADING

RESPONDENT

Before the Honourable Chivizhe, Judge:

For Applicant - Mr E. Dongo (Legal Practitioner)
For Respondent - Mr Z. Mufanebadza (Human Resources Manager)

CHIVIZHE, J:

This is an application for quantification of damages. The application which has been filed in terms of Rule 14 of the Labour Court Rules, 2017 is filed pursuant to a court order issued in this court under reference LC/H/444/22 on 7th July, 2022. In the order the court directed as follows;

“1. The application for review be and is hereby granted.
2. The 2nd Respondent’s Ruling dated 28 January 2022 purporting to convict and dismiss 1st Applicant from employ of the 1st Respondent be and is hereby set aside.
3. The 2nd Respondent’s Ruling dated 28th January 2022 purporting to convict and dismiss 2nd Applicant from the employ of the 1st Respondent be and is hereby setaside.”

4. The Applicants be and are hereby reinstated to their former positions without loss of salary and benefits from the date of suspension. If reinstatement is no longer possible, the parties may approach this court for quantification of damages.

5. The Respondent shall pay costs on the ordinary scale.”

THE BACKGROUND FACTS AND CLAIMS

The first Applicant, through his founding affidavit, outlines the background facts as follows; that he and 2nd Applicant were employed by the Respondent in 2009. During the tenure of the employment they did not utilize any leave days. They would instead encash the leave days. However, from 2015 onwards both of them never took any leave days neither did they encash any leave days. They both submitted that as a result at the time of their termination of employment in 2021 they had accrued 90 leave days each.

Both Applicants also contend that they used to earn salaries in both Local and USD currencies. They were required to sign for the salaries received in a book. There were no salary slips. They therefore had no access to the salary book or salary schedules as they were ordinarily retained by the employer. With regards the salary rates the 1st Applicant contends that he was earning a monthly salary of USD130 plus RTGS 27 602. The 2nd Applicant was earning USD 120 plus RTGS 27 061 at the time of his suspension and subsequently dismissal. The Applicants have attached evidence in the form of salary schedules generated by the Respondent at the end of every month. The schedules which are attached as Annexures C1 - C5 would tend to show how much employees of similar grade to 1st Applicant (Till Operator) and 2nd Applicant (Watch man) were earning in United States Dollars and in RTGS. At the time of filing of the application, the salary schedule of July 2022 obtained from the Chegutu Branch showed that a till operator was earning USD 190 plus RTGS 27 602 whilst a watchman was earning USD180 plus RTGS 27 601. The Applicants contend that the USD component was a product of negotiations between all the employees and their employer whereas the RTGS component is provided for under the NEC wages schedule.

Having laid this background, the Applicants have made a claim for the following;

1. BACKPAY – calculated from the date of suspension to the date of the order of reinstatement by this court. i.e 7th July 2022. The claim is reflected as follows;

   a. Isaac Gambe 1st Applicant
      (i) USD 190 x 9 months = USD 1710
      (ii) RTGS 27602 x 9 months = RTGS 248 418

   b. Christian Mutimuri 2nd Applicant
      (i) USD180 x 9 months = USD1620
      (ii) RTGS27061 x 9 months = RTGS 243 549

2. LEAVE DAYS

The Applicants both claim cash in lieu of leave days. They both are claiming 90 days which is the maximum claimable, although they contend that they were owed far in excess of
 90 days due to the fact that they never took leave days from 2018, neither were they paid cash in lieu of leave. The Applicants claims are as follows;

a. Isaac Gambe 1st Applicant
   (i) USD 190 x 3 months/90 days leave = USD570
   (ii) RTGS 27602 x 3 months/90 days leave = RTGS 82

806 b. Christian Mutimuri 2nd Applicant
   (i) USD180 x 3 months/90 days leave = USD540
   (ii) RTGS27061 x 3 months/90 days leave = RTGS81183

3. NOTICE PAY

Both Applicants had initially made a claim for three months’ notice pay. However on the date of hearing, their Counsel abandoned the claim. The claims for both Applicants under this head are accordingly dismissed.

4. DAMAGES FOR PREMATURE TERMINATION

Both Applicants submitted that at law they are entitled to damages for loss of employment which is calculated from the date of reinstatement to the date they are expected to have secured alternative employment. They both contend that a period of 48 months was likely to pass before they could obtain alternative employment. They have pointed to the fact of their lack of any professional qualifications and the harsh economic environment as being the main drivers behind the claims so made. The claims are reflected as follows;

a. Isaac Gambe 1st Applicant
   (i) USD 190 x 48 months = USD9 120
   (ii) RTGS 27602 x 48 months = RTGS 1 324 896

b. Christian Mutimuri 2nd Applicant
   (i) USD180x48 months = USD8 640
   (ii) RTGS27 061 x 48 months = RTGS1 298 928

Having outlined the background to the claims, the Applicants’ prayer is for the court to grant the order in terms of the draft as filed.

RESPONDENT’S SUBMISSIONS

The Respondent through the opposing affidavit by Zitarashe Mufanebadza, the Human Resources Manager, contends that an application for rescission of the default judgment on which the present application is based has been filed with the court. The Respondent however has also taken the option to respond to the claims as submitted in the present application. The Respondent is challenging most of the averments by the Applicants. The Respondent also contests the evidence as tendered under Annexure C1 - C9. The Respondent position is that the Applicants at no time were asked to report to the Chegutu Branch. The Supervisor at the Branch through a statement tendered in evidence and marked as annexure A denied that both Applicants ever approached him.

With regards to the salary structure, Respondent disputes that there was a dual payment system that had RTGS as well as USD component. The Respondent contends instead that, the
 Applicants salaries were determined by the NEC and were set in RTGS dollars. The Respondent however, would proceed to convert a portion of the Applicants salary to USD by using the prevailing interbank rate in order to cushion the employees against the harsh financial system. For this reason, Respondent contends $1^{st}$ Applicant’s salary as at 21 November 2021(the date of dismissal) was RTGS 12 652.00 and USD 130.00 represented as RTGS 14 950.00 which was converted at the rate of RTGS 115.00 as to 1 USD. With $2^{nd}$ Applicant, he was also said to have been paid RTGS 13 274 and USD 120 which was a result of conversion of RTGS 13 787.00 at the prevailing interbank rate on the same date as for $1^{st}$ Applicant. The Respondent denies completely that the USD component was set as a USD component of the salary. Respondent denies the existence of any such agreement between the employees and itself as the employer. Respondent also denies that there is a NEC wage schedule reflecting USD component. The Respondent contends instead that salaries for both Applicants were set by the NEC. According to the schedules the salaries for $1^{st}$ Applicant was RTGS 27 602 and for $2^{nd}$ Applicant RTGS 27 061. There was also a non-pensionable allowance of USD115 and USD105 respectively for both Applicants. The non pensionable allowance was the Respondent’s own initiative which could be stopped at any stage. The Respondent also disputed that there had been any increments as suggested by the Applicants. The Respondent also put the Applicant to the strictest proof of the agreement that they claimed was between the employer and them on salaries.

With regards to back pays in particular, the Respondent contends that whilst it is clear that the order issued by this court had retrospective application, the back pay salaries however can only be paid in RTGS at the NEC rates applicable. The Respondent however was willing to convert the RTGS amounts payable to United States Dollars on the date of payment on the basis of a conversion by utilizing the interbank rate applicable on the date of payment. The Respondent also contends that non-pensionable allowance is payable only to serving employees.

On leave days the Respondent contends that in the absence of any evidence to justify the claims, the claims cannot be sustained. The Applicants were religiously paid cash in lieu of leave at the end of each year as demonstrated by Annexures B and C attached to Respondent’s papers. The Respondent contends the Applicants are only owed pay leave for the year 2021, for days accrued up to the date of their dismissal. The Respondent therefore contends $1^{st}$ and $2^{nd}$ Applicant are owed as follows;

a. Isaac Gambe
(i) RTGS 920.07 x 27.5 days = RTGS25 301.93
b. Christian Mutimuri
(i) RTGS 902.3 x 27.5 days = RTGS24 805.83

The Applicants having abandoned the claim for Notice Pay there is no longer any need to consider Respondents position on this point.

With the claim for damages for loss of employment, Respondent contends that it is a trite position at law that the duty to mitigate arises immediately upon dismissal and the damages will only be payable for the period it would reasonably take for one to obtain alternative employment. The Respondent submits in this case both Applicants have not demonstrated any attempts to obtain alternative employment. No such evidence has been placed before the court.


In view of their previous positions being positions that do not require formal training it is Respondents submission that the Applicants ought to have obtained employment immediately after their dismissal from employment. Respondent however submits that 1st Applicant’s damages should be calculated up to the date he started vending. As for 2nd Applicant, as it was submitted that he retired to his rural home the court should simply dismiss his claim as he clearly did not take any steps to mitigate his losses. The Respondent’s prayer is for dismissal of both Applicants claims for 48 months salary as there has been no evidence tendered to justify the claims made.

THE LEGAL POSITION

It is a trite position at law that the quantification of damages in this court is evidentiary based. I refer, for example to **Ruturi v Heritage Clothing (Pvt) Ltd 1994 (2) ZLR 375 (S)** where the Supreme Court set aside an award which had been arrived at on the basis of no evidence. In this respect, Gubbay CJ (as he then was) at 380 E observed as follows;

“For these reasons, the award must be set aside, for to quantify damages, or indeed make any finding on no evidence is to err at law.”

Secondly it is also the position at law that the onus to prove any claims made in a quantification case lies on the Applicant. This position arises out of the general principle of law that he who alleges must prove.

The last principle of law that is relevant to this case is that the basis of any claims made is the monthly salary which is computed usually on the basis of the contract of employment. This approach was followed in **Mvududu v Arda SC58/2015** which is a matter I heard in this court before it went up on appeal to the Supreme court. In the Supreme court, Patel JA (as he then was) outlined as one of the pertinent issues for determination the issue of correct amount of the Appellants salary. The court came to a conclusion that the figure/amount utilized in assessing damages is the net salary and not the basic salary.

EVALUATION

Having laid down the relevant principles that will guide me, I turn to address the issues that are pertinent before this court in *casu*. There are in my view four issues for determination;

1. Firstly, is the issue of who has the onus to discharge.
2. Secondly, is the issue as to what is the applicable rate of salary to be utilized for assessment of damages and in what currency.
3. Thirdly, whether or not the Applicants are entitled to backpay and cash in lieu of leave days.
4. Fourthly and finally. Whether or not the Applicants are entitled to be paid damages for loss of employment. I turn to address the issues.

WHO HAS THE ONUS TO DISCHARGE

It is clear that this matter being an application for quantification of damages, the onus is on the Applicants to prove/ establish each and every particular claim made in this application. The court places reliance on this position in **First Mutual Life v Jackson Muzivi SC 9/07** where Cheda JA said the following;


“The suggestion that the employer failed or refused to furnish the Respondent with the appropriate salary scale suggest a wrong approach to the issue. It is the Respondent who had the onus to prove his claims.”

It follows that in this case, the Applicant have the onus to prove all the claims made.

**WHAT IS THE APPLICABLE RATE OF SALARY**

There is clearly a dispute of fact between the parties on this issue. The Applicants contend that they were placed on a dual salary system i.e a combined RTGS and USD salary. They have tendered evidence in the form of salary schedules from the Chegutu Branch. The Respondent contests this position and submits that the Applicants were both earning in RTGS under the NEC Collective Bargaining agreement. The Respondent had however taken an initiative to cushion its employees from the harsh financial situation by converting part of the RTGS salary to be payable in USD based on the interbank rate prevailing on the date of payment. The Respondent has as a consequence submitted that once the court awards the cumulative damages payable, the Respondent will proceed to convert the amounts payable to USD based on the prevailing rate of exchange on the date of payment.

The court’s finding on the issue of the rate of salary is that the Applicants both had the onus to prove the salary rate. They have both failed to discharge the onus on them as they have failed to tender any evidence in support of the salary rate they are claiming. The evidence they have tendered has been challenged by the Respondent on the basis that it does not relate specifically to the Applicants. The Applicants have failed to rise to the challenge. It is also apparent that the schedules do not refer to the salary rates as prevailing on the date of dismissal as required at law. In the absence of any evidence tendered by the Applicants, the court has taken the option to accept the NEC rates in RTGS as submitted by the Respondent. The salary rates which are irrefutable by the Applicants are that Applicant Isaac Gambe was on a salary rate of **RTGS$27 602.00** whilst the 2ND Applicant Mutimuri was on a salary rate of **RTGS$27 061.00**.

**WHETHER OR NOT THE APPLICANTS ARE ENTITLED TO CASH IN LIEU OF LEAVE DAYS**

This claim has been challenged by the Respondent on the basis that Applicants were religiously paid cash in lieu of leave at the end of each year as demonstrated by Annexures B and C attached to Respondents papers. The Respondent submits that the Appellants are each owed only for days accrued up to the date of the termination of their employment.

In the court’s finding the Applicants have the onus to prove the number of days they are owed paid leave by the Respondent. The Applicants have both failed to prove or establish that they were indeed owed for the number of days as referenced in their claim. The claims have not being substantiated before the court they ought therefore to be dismissed. The Respondent has however tendered to pay for the days accrued up to the time of the Applicants termination. This has not been refuted by the Applicants. In the circumstances the court makes an award for cash in lieu of leave days in the following terms;

1. Isaac Gambe 1st applicant
   RTGS 920.07 x 27.5 days
   **Total = RTGS 25 301.93**


2. Christian Mutimuri $2^{\text{nd}}$ Applicant
   RTGS 902.03 x 27.5 days
   Total = RTGS 24 805.83

WHETHER THE APPLICANTS ARE ENTITLED TO DAMAGES FOR LOSS OF EMPLOYMENT

Both Applicants have each made a claim of 48 months’ salary. The claims have been challenged by the Respondent on the basis that the Applicants have not proved any reasonable steps taken to mitigate loss. Having failed to place such evidence before the court, the Respondent’s position is that the court ought to dismiss the claim. It is indeed a trite position at law that a wrongfully dismissed employee has a duty to mitigate damages by finding alternative employment as soon as possible. In **Kuyumani Zulu v PTC SC110/04** the Supreme Court per Chidyausiku JA stated that a dismissed employee is under an obligation to mitigate his damages as quickly as possible and failure to do so might cause him to be denied damages.

The circumstances in this case show that both Applicants were terminated from employment on 21 November, 2021. They both contend that they do not hold any professional qualifications, one of them Isaac Gambe was employed by Respondent as a Till Operator, whilst Christian Mutimuri was employed as a Watchman. They have both pointed to the harsh financial conditions to justify their claim of 48 months’ salary.

During oral arguments, the court also raised with the parties the issue as to whether backpay and damages should be treated as separate and distinct claims as had been submitted in this case. Both parties were granted an opportunity to file closing submissions to address amongst other things, this specific point. Both parties duly filed their written submissions.

The $1^{\text{st}}$ and $2^{\text{nd}}$ Applicant’s position of the law is that the two are treated as separate and distinct claims. The $1^{\text{st}}$ and $2^{\text{nd}}$ Applicants were relying on authorities in **ZUPCO v Daison SC 87/02 and Kuda Madyara v Globe and Phoenix Industries SC 63/02**. The $1^{\text{st}}$ and $2^{\text{nd}}$ Applicant contended that **Delta Beverages v Murandu SC 38/15** which had been referred to by the court did not specifically address the point. On this basis their prayer was for the court to grant their claims for backpay and damages separately as submitted.

The Respondents position per contra was that backpay and damages should be treated as composite claim. The Respondent placed reliance on **Olivine Industries Private Limited v Caution Nharara SC 88/05** which decision also quoted with approval **Leopard Rock Hotel Private Limited v Van Beek SC 6/2000**. The Respondents submission was that the Applicants damages in this case had to assessed by reference to the backpay lost which was covering the period of 7 months. It was the Respondents further contention that in view of the fact that the Applicants had not been reinstated they were entitled to claim for damages as a composite claim instead of claiming for damages and backpay separately. This would avoid a situation of double compensation.

Having considered both parties submissions and the authorities as referred to the court tends to agree with the Respondents position that in this case backpay and damages have to be treated as a composite claim. This is based on the clear position of the law as outlined in **Leopard Rock Hotel Company Private Limited v Van Beek supra** which was referred to by the Respondent. In that judgment the Supreme Court stated as follows;


“Back-pay” is thus a concept associated with reinstatement. If an employee is reinstated, she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal but is not reinstated, she will be entitled to “damages”, a major element of which will be back-pay. Perhaps more correctly, one should say the damages will be assessed by reference to the back-pay lost. But here the back-pay will be limited to a period from the date of wrongful dismissal to the date by which she, could, with reasonable diligence, have obtained alternative employment. See Ambali supra and Myers supra.”

The Applicants have submitted that they took odd jobs to mitigate their loss after their dismissal from employment. Ist Applicant was into vending whilst 2nd Applicant was into subsistence farming. The court has factored in 3 months as being the period by which they were expected to have obtained alternative employment. This is taking into account their qualifications, the economic situation prevailing in 2021 when they were dismissed from employment. The court has also taken judicial notice that through various statutory instruments, the government changed the monetary policy several times, there was for an example, the introduction of the Zimbabwean Dollar as the sole currency for domestic transactions. There has also been the introduction of the ZIG currency. The court has not had the benefit of hearing the parties on the change of currency. For this reason, the order shall read in the RTGS dollars as submitted before me. The Respondent, having undertaken in these proceedings, to pay the amounts to be awarded in USD at the prevailing rate of exchange on the date of payment this shall also be reflected in the order.

In the result it is ordered as follows;

1. The 1st and 2nd Applicants claim for notice pay is dismissed.
2. The Respondent shall pay to the 1st and 2nd Applicants the following damages reflected in RTGS Dollar currency or the equivalent in USD based on the prevailing interbank rate on the date of payment.

(a) Cash in lieu of leave

1st Applicant- RTGS 25301.93
2nd Applicant- RTGS
24805.83 (b) Damages/ backpays

1st Applicant- RTGS 27602 x 12months = RTGS 331 224.00
2nd Applicant- RTGS 27061 x 12 months= RTGS 331 212.00

3. The Respondent shall also pay costs on the ordinary scale.
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