John S. Manyeruke v African Sun t/a

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/31/2013
HELD IN HARARE, SEPTEMBER 21, 2012
CASE NO. LC/H/261/2004
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/31/2013

HELD IN HARARE, SEPTEMBER 21, 2012	CASE NO. LC/H/261/2004

In the Matter Between

JOHN S. MANYERUKE				APPLICANT

And

AFRICAN SUN t/a			       		RESPONDENT

Before The Honourable E. Makamure         : President

For The Applicant     		: Mr P. Mabundu (Legal Practitioner)

For The Respondent  		: Mr A.K. Maguchu (Legal Practitioner)

MAKAMURE E.,

This is an application for quantification of damages following a consent order for reinstatement with the alternative for damage.

Parties failed to agree on quantum and the matter was therefore argued before me.  However, when the matter was argued the matter took long with most of the time being spent on the cross examination of the applicant by the respondent’s legal practitioner.  Some of the questions asked were to do with the size of a particular section of a hotel or hotels at which the applicant worked.  I am not sure whether there was any benefit from that lengthy time of cross examination.  I believe that when legal practitioners lead evidence and cross examine witnesses, they do so in order to assist the Court in coming up with an informed decision.  Sometimes it may also be that a witness is concealing important information which if disclosed upon cross examination will assist the Court.  Where that is the case, clearly the Court will get some insight into what would have been concealed.  That exposure upon cross examination guides the Court to make an informed decision.  Unfortunately in the present case, I am unable to say that the long cross examination yielded anything outside what the legal practitioners consider to be undisputed.

The general guiding principle in the computation of damages as laid down by the Supreme Court in the case of Kuda Madyara v Globe and Phoenix Industries (Private) Limited t/a Ran Mine 2002(2) ZLR 269(S) @ 273D is as follows:

“As far as back pay and benefits are concerned, there is no cogent reason for distinguishing between an employee who is reinstated and one who is not, when the order of reinstatement has a retrospective effect.  In any view both of them are entitled to back pay and benefits.  The only difference between them is that one get his job back whilst the other is paid damages for the premature termination of his employment contract.”

What this means is that Mr Manyeruke is entitled to his back pay with effect from June 2004 to the time of the order of reinstatement i.e. May 2010.

It is settled that once a person has been dismissed, he is obliged to seek alternative employment in order to mitigate his loss [See Ambali v Bata Shoe Company Ltd 1999(1) ZLR 417 (SC)].

The applicant has provided proof that he indeed tried to look for alternative employment.  His efforts were in vain.

It is not disputed that the applicant is entitled to his back pay at the rate of the agreed figure of USD 980.00 per month.  The parties are agreed that the applicant was entitled to the following benefits:

Company benefit

Holiday benefit

City allowance

Long service award

School fees

Fuel

In his closing submissions Mr Maguchu who appeared for the respondent admitted that the said benefits were received by the applicant during his employment but that there is nothing to suggest that these were contractual benefits.  It was submitted that the applicant has the onus to prove that they were contractual benefits.  In support of this submission, reference was made to First Mutual Life v Muzivi SC 9/07 (Muzivi).   It is correct to say that the onus is on the party claiming to prove this entitlement.  However, in casu the entitlements are agreed.  This shows that the Court needs go no further.  Had those benefits not been his entitlement, I believe that the employer would have shown that the applicant was not entitled to such benefits.  Since the parties are agreed that the applicant used to receive the said benefits, I accept as a fact that he was entitled to them in terms of the amounts which he presented to the Court (See Muzivi above).

The applicant’s claim is as follows:

Salary for February 2009 till May 2010 at the agreed monthly rate of $980.00	= $156 680.00

Damages 36 months	= $35 280.00

Company car benefit @ $200.00 per month February 2009 to May 2010 = $3 200.00

Holiday benefit (Admitted by respondent)	= $1 120.00

City/Housing allowance (Admitted by respondent) = $1 440.00

Long service award (Admitted by respondent) = $1 470.00

Leave days (Admitted by respondent) = $2 940.00

School fees (Admitted by respondent) = $2 782.00

Fuel (Admitted by respondent) = $11 232.00

Interest with effect from date of judgment (May 2010) = $7 725.00

From the above claim only two items call for my comment.  These are items (ii) Damages and item (iii).  Expert evidence was called from a person who runs an employment agency, one Mr Kariwo.  His testimony was that it would take a person of applicant’s qualifications and experience up to nine (9) months to secure alternative employment.  This is not borne out by evidence.  The Court has on record proof that on 7 March 2005 the applicant received a regret following an application which he had made.  I can safely say that if the response is dated 7 March 2005, the application ought to have been made earlier than 7 March 2005.  This is about ten months from the date of dismissal.  So I am not persuaded by the expert evidence in the presence of proof to the contrary.  The applicant also stated that he failed to obtain a letter of recommendation from the respondent despite his efforts to do so.  This was denied on behalf of the respondent.  However, had the respondent written a letter of recommendation, a copy of such a letter would have definitely been on its files.  Clearly once the applicant asserted that as a former employee he approached his erstwhile employer for recommendation, in my view the onus shifts to the employer to show that in fact they wrote a letter of recommendation to enable applicant to use it in his search for employment.  As regards the car benefit, I agree that had he been on employment, he would have been entitled to the use of a car.  He has based his calculation on the basis of his own car which he uses.  The applicant entitled to this claim.  The applicant also stated that he resorted to buying anything he came across for resale in order to make a living.  The earnings from such endeavours have been placed at thirty dollars (US$30.00) per month.

Going back to the question of the amount of damages, it was shown that 9 months is clearly not a reasonable period within which the applicant could have secured alternative employment.  The onus is on the employer to show that the applicant, with diligent search could have secured alternative employment (See Nyaguse v Mkwasine Estate (Pvt) Litd 2000(1) ZLR 571 (S)).  That onus has not been discharged.  The applicant has shown that to date he has not secured alternative employment.  In view of authorities, I am of the considered view that damages which are the equivalent of twenty four months’ salary will be reasonable.

In the circumstances the applicant is granted the following items without amendment:

(i), (iii), (iv) – x;    Item (ii) is reduced to 24 months.  The total claim is therefore

(i)										$15 680.00

(ii)										$23 520.00

(iii)										$  3 200.00

(iv)										$  1 120.00

(v)										$  1 440.00

(vi)										$  1 470.00

(vii)			$  2 940.00

(viii)										$  2 282.00

(ix)										$ 11 232.00

(x)	Interest at the prescribed rate					$   7 725.00

Total 										$70 609.00

Less earnings  								$     450.00

$70 159.00

Accordingly, it is ordered that the respondent awards the applicant damages in the sum of seventy thousand one hundred and fifty nine dollars ($70 159.00) in lieu of reinstatement.

Maganga and Company Legal Practitioners, for the Applicant.

Dube, Manikai and Hwacha Legal Practitioners, for the Respondent.