John Guwera v Chloride Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/688/2016
HARARE, 4 JULY 2016 &
CASE NO LC/H/APP/655/2015
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/688/2016

HARARE, 4 JULY 2016 &					CASE NO LC/H/APP/655/2015

4 NOVEMBER 2016

JOHN GUWERA							      APPLICANT

CHLORIDE ZIMBABWE						      RESPONDENT

Before the Honourable G Musariri, Judge

For the Applicant	Mr C Muchichwa (Unionist)

For the Respondent     Mr N Madya (Attorney)

MUSARIRI J:

The applicant applied to this court for payment by the respondent of the sum of US$34 734-54 being damages in lieu of reinstatement. The respondent opposed the application. It is common cause that:

In July 2004 the respondent dismissed the applicant from its employ;

In July 2006 the applicant obtained alternative employment;

In September, 2006 this court ordered the respondent to reinstate the applicant or pay damages in lieu of reinstatement;

In March 2008 the respondent tendered payment of the applicant’s back pay in Zimbabwe dollars;

The applicant did not accept the tender; and

The parties could not agree on the quantum of damages due.

On the basis of the above facts the respondent argued in the main that it owed nothing because the applicant failed to accept a valid tender of payment. It was specifically argued in the respondent’s Heads of Argument that:

“16.	In view of the foregoing, it is respectfully submitted that the effect of the tender made by the respondent coupled with the rejection of same without an explanation and failure to enforce his rights for a period of more than nine (9)

years amounts, with respect, to a waiver by the applicant of his entitlement to the back pay. …”

I respectfully disagree with the respondent’s argument. Waiver is not lightly inferred. It has to be established by clear and unequivocal evidence. The evidence in casu shows that at the time of the tender the parties were actively engaged in negotiations to settle the matter. The bottom line is that the respondent offered a certain sum as final settlement.  The applicant wanted a higher amount. That is why he did not accept the amount tendered. That hardly amounts to waiver of one’s rights. That attitude is consistent with a person insistent upon his rights being settled in full. At least in accordance with his understanding of what was due to him. In any event the debt due were damages in lieu of reinstatement. The quantum was not agreed between the parties. Neither had it been assessed by this court. Thus the claim was illiquid. The debtor cannot, in these circumstances, argue that its tender equates to specific performance. That might apply if the debt was liquid.

Alternatively the respondent argued that the applicant was only entitled to back pay from the date of dismissal to the date he found alternative employment. Again I respectfully disagree. An employee who is wrongly dismissed is entitled to back-pay and benefits from the date of dismissal to the reinstatement order. In addition he is entitled to either reinstatement or damages in lieu of reinstatement. This is apparent from the ruling by the late SANDURA JA, as he then was, in the matter of Zupco v Daison 2002 (2) ZLR 628 (S) wherein he stated that (at p 632 D):

“In the circumstances, Daison is entitled to net back-pay and benefits from the date of his dismissal, being 23 April 1997, to 9 April 2001, the date when the tribunal ordered that he be reinstated or paid damages in lieu of reinstatement.”

In this case there was a 2 (two) year period between dismissal and reinstatement. According to the applicant’s calculations filed of record he was on a basic salary of   USD389-00 per month. Thus he is entitled to 389 x 24 = $9 336-00 as back-pay. I would have quantified his benefits over that period but I understand that current precedents say otherwise.

As for damages, the respondent conceded in paragraph 7 of its Heads that the applicant was entitled to the same up to February 2006. That is a period of 11/2 years from the date of dismissal. Thus the damages work out as:

389 x 18		=	         $7 002-00

The total award is itemised as follows:

Back-pay					9 336-00

Damages					7 002-00

Total					  US$ 16 338-00

Wherefore it is ordered that

The application for assessment of damages be and is hereby partially granted;

The respondent shall pay the applicant a sum of US$16 338-00 as damages in lieu of reinstatement; and

Each party shall bear its own costs

G Musariri

J U D G E