Isaya Hwendera v Arcturus Mine

### Preamble

IN THE LABOUR COURT OF ZIMBABWE

JUDGMENT NO LC/H/429/2014

HARARE, 12 JUNE 2014

CASE NO

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IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/429/2014

HARARE, 12 JUNE 2014 & CASE NO LC/H/APP/03/2014

18 JULY 2014

In the matter between

ISAYA HWENDERA APPLICANT

Versus

ACTURUS MINE RESPONDENT

Before The Honourable L Kudya : Judge

The Applicant in Person

For the Respondent T Tandi (Legal Practitioner)

KUDYA J:

This is an application for quantification of damages arising from an order by the Labour Court, where it ruled that the applicant’s dismissal was wrongful and that he had to be reinstated by the respondent company to his original position without loss of salary or benefits or alternatively that he be paid damages in place of reinstatement in a sum to be mutually agreed by the parties or an amount to be set by the court after quantification of the same.

The background to the matter is that the applicant was dismissed from the respondent’s employment on allegations of breaking the respondent’s code of conduct it being argued that he had committed the offence of gross negligence by failing to adequately supervise the controls at his worksite leading to the theft of certain materials which were used at his workplace. Following the dismissal the applicant applied to the Labour Court where the Labour Court set aside his dismissal and reinstated him as stated above.

The respondent indicated that it was not able to reinstate the applicant in which case it opted to pay him damages in place of reinstatement. The parties could not agree on the quantum and this led the applicant to apply to the court to set out the amount he has to be paid. It is this quantification which is therefore the subject of this judgment.

As per the applicant’s draft order he claimed the following from the respondent:

Monthly salary to date of payment that is from April 2013 to date of payment of the damages.

Transport expenses incurred to relocate to Redcliff after he was evicted from company house pending the conclusion of his case.

NSSA and MIPF employee contributions plus interest which contributions had not been effected by the respondent

Three months’ notice pay.

Damages for loss of employment in three months’ salary per each of the 25 years served.

Damages for premature loss of employment that is one month’s salary for the remaining thirteen (13) years the applicant would have worked to retirement had he not lost his job prematurely.

Cost of application on an attorney-client scale.

In response to the application the respondent agreed to pay the applicant’s outstanding salary up to January 2014, the notice pay and the MPI and NSSA contributions. It however heavily contested the quantum of damages primarily on the basis that these were not calculated as per legal principle applicable to them. In particular the respondent argued that the applicant had not mitigated his loss as required by law thus his only entitlement was to the extent of eighteen months salary which is a period within which he would have reasonably been expected to find alternative employment. The respondent thus tendered the payment of the admitted amounts as per paragraphs 1 to 3 of document 02 filed of record. In regard to the damages in place of reinstatement it also tendered figures contained in paragraph 4 in the 02 document which effectively provides for the payment of three months’ notice pay, six months’ salary, nine months leave and the NSSA and MIPF contribution totalling $4 851-24 less tax.

On the date of the hearing the applicant agreed that the respondent should pay it the amounts it was not contesting, but however was adamant that damages should be paid as per his calculations and for the reasons which he proferred. This effectively did away with some of the heads of the admitted damages. It is therefore not this court’s intention to revisit those. To that extent the instant judgment will only address the contested heads of damages. Each of the heads will be addressed in turn as appears below:

Damages in place of reinstatement

The principles applicable to this head of damages are set out in the cases cited extensively by the respondent in its heads of argument. Since these are apparent on the face of the record they therefore do not deserve any re-statement. Applying the principle of mitigating one’s loss to the facts of the instant case what the court has before it is the applicant’s word that he mitigated loss by getting a job in July 2013 which job he lost in unclear circumstances but which loss he believes was ultimately be linked to the charges which had seen/founded his wrongful dismissal.

He also argued that of all the internet clipping submitted by the respondent as proof that it was easy for him to get a job locally or abroad it is apparent that none of those clippings refer to vacancies locally. It would thus be irregular to argue that because the submitted clippings speak to opportunities around the globe with the exception of locally it means that the applicant sat and did nothing. The absence of any local advert is clear testimony that job opportunities in the current economic environment are not as easy to get so the respondent would have the court believe.

In the same vein the court accepts that in a wrongful dismissal case it would also be irregular for the applicant to adopt retrenchment principles in a case which is not a retrenchment one. It is thus clear that the proposal of three months’ salary for every year worked in the court's view is more in keeping with retrenchment principles which are not applicable here. That having been said the question then remains as to what is the reasonable period within which the applicant can be said to get employment. It need be noted that there are no hard and fast parameters periods set within case law as to when one can be said to secure a job. Each case has to be decided on its own merits. In the instant case the court is dealing with a qualified drill person notwithstanding the tag about his wrongful dismissal if one takes into account that the applicant is an expert in his field who had duly and diligently served his employer for about 25 years it would in the court’s view not be stretching one’s imagination too far to suggest that with a diligent search within two years the applicant could secure employment. This is more so if it is demonstrated to the prospective employer that the dismissal by the respondent was set aside thus effectively giving the applicant a clean working record. In these result therefore the applicant is entitled to twenty-four months damages that is $420 x 24 = $10080-00. If the applicant has already been paid part of that money as back pay such an amount will need to be deducted from the total sum set out above.

Punitive damages

As regards this claim the court is not persuaded that the applicant has laid down a foundation for it. The order is clear that all that court awarded him were damages in place of reinstatement and once principles applicable to that heading have been used for the calculation as done above that is the end of the matter. To that extent the punitive claim falls away.

Bonus

The law is clear that this is performance related. As stated in the cases cited in the respondent’s heads where the applicant was not at work to show how he had performed it will be difficult to make such an award. In the result the court endorses the offer made by the respondent in this respect as contained in its offer.

Transport

No evidence was tendered to show what was incurred by the applicant and without such evidence it would be difficult to award him anything. The claim thus falls away for want of evidence.

Future Earnings

This heading in the court’s view would have been appropriate had the court been dealing with a retrenchment case. Since it is not the claim thus falls away.

Costs on Attorney-Client Basis

Apart from the mere say so no evidence was led to show why the court should award such costs. In the result costs on the ordinary scale should thus apply.

In the finality the applicant’s claim being with merit as regards damages in place of reinstatement it should succeed to that extent as well as to the extent of the claims conceded by the respondent with costs on the ordinary scale. The rest of the claims accordingly falls.

IT IS ORDERED THAT:

The quantification claim being with merit as regards damages in place of reinstatement it be and hereby succeeds with costs to the following extent. The respondent pay to the applicant $4 307-00 for shifts, leave days and bonus as appears on document 02. The respondent also pays to the applicant:

Three months’ notice pay - $ 1261-06

Twenty four months’ salary - $10080-00

Leave Accrual - $ 363-82

MIPF Contributors - $ 590-14

NSSA Contributions - $ 114-00

Total - $12 409-22

Amount is subject to tax and less any amount paid in the $4 307-00 above.

Kantor & Immerman, respondent’s legal practitioners