Jeremiah Rusere v Load Engineering

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/225/2014
HARARE, 14 OCTOBER 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/225/2014

HARARE, 14 OCTOBER 2013		           		           CASE NO. LC/H/44/10

& 11 APRIL 2014

In the matter between:-

JEREMIAH RUSERE						Applicant

And

LOAD ENGINEERING						Respondent

Before The Honourable Makamure, Judge

For Applicant		Ms N. Muzuva (Legal Practitioner)

For Respondent		Mr. R. Mutasa (Legal Practitioner)

MAKAMURE J:

This is an application for quantification of damages.

The parties appeared before me on 2 September 2013.  The matter was postponed to enable parties to pursue the possibility of an out of court settlement.  In that hearing Counsel for the respondent had an offer of nine thousand US dollars (US$9 000.) which the applicant was to consider.  Counsel for the applicant indicated that they needed time to consider how payment was going to be done.

When the hearing resumed on 14 October 2013 Counsel for the respondent raised a point in limine.  He submitted that on 2 September 2013 they, (the respondents) were under the impression that the applicant would consider how payment would be done and that that was the only issue as the applicant had appeared to be happy with the offer.  Thus the offer was still there.  What this means is that during the time that they were given, the parties did not discuss.  After the Court adjourned on 2 September 2013 the respondent ought to have pursued his offer.  Applicant ought to have indicated how payment would be done.  Parties were jointly aware of the need to discuss.  The fact that parties came back to court in the same position that they were on 2 September 2012, is clear testimony that no further discussions between the parties took place.  One party can therefore not blame the other and yet they were equally responsible.  Accordingly the point in limine cannot not be granted.

The point in limine is accordingly dismissed.

Merits

On the merits the applicant is claiming a total of thirty thousand three hundred and forty eight thousand dollars and ninety nine cents (USD30 348,99).  This figure is broken down as follows:

1.  Damages in lieu of reinstatement		=       USD 8 152,46

USD 452,97 X 18 months

2.  3 months notice pay USD452,97 x 3		=       USD 1 358,91

3.  Back pay – 24 months				=       USD10 871,28

4.  Punitive damages 				=	USD 8 153,46

5.  Relocation Allowance – 1 month’s salary	=        USD   452,47

6.  Leave days 3 months’ salary			=	 USD 1 358,91

TOTAL						=    USD30 348,99

Applicant submits that the date of termination of his employ has still not been determined.  However the record shows that on 27 August 2009 the applicant was suspended from employment pending a hearing.  On 4 September 2009 his contract of employment was terminated.  Thereafter proceedings on appeal for unfair dismissal were commenced.  In the circumstances I do not believe that the date of dismissal has not yet been determined. This is clear from the record.

Turning to the claim, the respondent dismissed the applicant but the Court reinstated him. The respondent argues that considerations for damages for a dismissed employee should not take into account things like notice etc.  These, the submission continued, would only be considered where an employee resigns.  I disagree.  This is because following the success of his appeal the Court reinstated him. In the circumstances therefore the respondent cannot consider the applicant as a dismissed employee.  In the words SANDURA J.A. (as he then was):

“As far as backpay 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.”

(see Kuda Madyara v Globert Phoenix  t/a Ran Main SC 63/07)

In view of the above the applicant is entitled to his back pay, cash in lieu of leave and notice pay.

It is common cause that earlier on parties engaged in discussions regarding settlement of the matter.  That factor in my view shows willingness by both parties to finalise the matter. In view of the attitude of the respondent’s willingness to settle, punitive damages will not be considered. The respondent made an offer of $9 000,00 in full and final settlement of application claim.  That offer was not accepted to the applicant.

The applicant claims the equivalent of 18 months’ salary as damages.  The applicant in his affidavit did not indicate how he mitigated his loss.  It is an established principle of our law that a person who has been dismissed must seek alternative employment in order to mitigate their loss. (See Ambali v Bata Shoe Company 1999 (1) ZLR 417) It is also trite that the employer has the duty to show that a dismissed employee should have earned or did earn a salary in mitigation of his loss (see Godfrey Nyaguse v Mkwasine Estate SC 34/2000). The employer has duly discharged that onus as the record shows.  Computations of amounts due and owing will therefore consider that the applicant did secure alternative employment as a farmer according to  communication from the employer’s legal practitioners of 31 July 2012.

In awarding damages an employee will only be compensated for the period it would have taken him reasonably to obtain alternative employment.  The respondent has suggested that the applicant could have obtained employment within 12 months of his dismissal.   When parties addressed the court it was submitted on behalf of the applicant that he resorted to small scale farming and that he is currently on a short term contract with another employer. As noted earlier this is not contained in the applicant’s affidavit. Applicant conceded to having been in employment after the employer’s investigation.   When the court sought clarification on these aspects Ms Muzuva abandoned certain claims and urged the Court to award backpay and cash in lieu of leave days. These are the applicant’s proved entitlements.

Counsel correctly conceded that the applicant’s earnings be deducted from the total award. In the address counsel for the applicant submitted that the applicant had mitigated him loss. A figure of $500 x 7 months was suggested as earnings in mitigation of loss when he was employed temporarily plus about $300,00 per season earned by him as a farmer.  Applicant was dismissed from employment with effect from 4 September 2009.  This means that for four seasons applicant has been earning roughly $300 per season.  This comes to $1 200,00.  Add to this the $3 500.00, this totals $4 700,00.

The monthly salary was 452,97 [Rounded up is to $453,00 – Annexure ‘C’]

Judgment was handed down on 25 February 2011 The backpay therefore amounts to what ought to have been earned during the period September 2009 to February 2011.  This comes to 18 months. The damages are computed as shown below.

Back pay $453 x 20	months			= USD8 153

Cash in lieu of leave	3 months’ salary		= USD1 358,91

3 months notice @ $453 per month		= USD1 358,91

Total							= USD10 870,82

Less	 						= USD4 700

= USD6 170,82

Unless the respondent’s offer is still open and the applicant accepts it, damages are hereby granted in the sum of six thousand one hundred and seventy US Dollars and eighty-two cents (USD6170,82) and costs of suit.

It is accordingly so ordered.

Mushangwe & Company – legal practitioners for Appellant

Dube Manikai & Hwacha – legal practioners for Respondent