Johnson Muperekwa v Varichem Pharmaceuticals (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO LC/H/35/16
HELD AT HARARE 19th JANUARY, 2016
CASE NO LC/H/APP/442/14
& 22nd JANUARY, 2016
X REF. LC/H/705/13
JUDGEMENT NO LC/H/35/16
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO LC/H/35/16

HELD AT HARARE 19th JANUARY, 2016                  CASE NO LC/H/APP/442/14

& 22nd JANUARY, 2016					         X REF. LC/H/705/13

In the matter between:-

JOHNSON MUPEREKWA 					-	APPLICANT

AND

VARICHEM PHARMACEUTIALS (PRIVATE) LIMITED      - 	respondent

Before the Honourable B.T Chivizhe: Judge

For Applicant	: Mr G. Pendei (Legal Practitioner)

For Respondent	: Mr V. Muza (Legal Practitioner)

CHIVIZHE, J;

The matter was placed before me as an application for quantification of damages pursuant to an order granted by this Court in case LC/H/705/13 which order dismissed respondent’s appeal and upheld an order by the NEC Appeals Committee dated 24th March 2014 which order directing reinstatement. The Court order issued by the Labour Court did not award damages as an alternative for reinstatement. This was clearly contrary to Section 89(2)(c)(iii) of the Labour Act [Cap 28:01] which requires that whenever the Court considers reinstatement as the more appropriate remedy and grants it the employer must still be given an option to pay damages in lieu of reinstatement. The appellant however having sought and failed to obtain reinstatement then approached this Court for quantification of damages in lieu of reinstatement.

The general position at law is that a dismissed employee is entitled to claim his salary, backpay and benefits lost as a consequent of unlawful dismissal. The Labour Court is granted powers under Section 89 to award equitable relief were there has been an unlawful dismissal wrongful. On that basis the applicant having been unlawfully dismissed is properly before the Court. The application itself is unopposed. The respondent having been served with the application by the applicant and having also being served with a Notice to Respond by the Registrar; the respondent however having failed to file its response with the Court. At the hearing applicant took the point in limine that the respondent was automatically barred on account of not having filed its Notice of Response. The respondent having failed to show good cause for the Court to condone it the matter was heard on the merits with the respondent having been barred.

The applicant initially submitted claims for backpay, school fees allowance, bonus, leave days, overtime, gratuity, cash in lieu of notice, damages for loss of employment totalling an amount of $33 437.81. After evidence had been led in support of his claims the applicant adjusted his claim to a total of $31 650.85.

It is important to restate from the outset the basic guiding principles in an application of this nature. The first principle is that the amount of damages payable for unlawful dismissal is pegged on the period it would have taken the employee to obtain alternative employment. Ambali vs. Bata Shoe Company Limited 1999 (1) ZLE 417 refers. The second main principle is that an employee has a duty to mitigate his employment by looking for alternative employment and that any reasonable form of employment can be sought see Gauntlet Security Services (Pvt) Ltd vs. Leonard 1997 (1) ZLR 583 (S). The last principle is that an employee is only entitled to claim benefits that were due and payable on the basis of his contract. See First Mutual Life Assurance Limited vs. Jackson Muzivi 2007 (1) ZLR 325 (S). I proceed to determine the adjusted individual claims as submitted by the applicant.

Back pay

The applicant submitted a claim for salary backpay i.e. from the date of unlawful dismissal May 2013 to the date of the order by this Court dismissing the appeal by the employer which would also be the date of order of reinstatement i.e. July 2014. The claim is covered in two periods. Firstly from May 2013 to December 2013 the salary was pegged at $439.13 (salary slip tendered in proof) (Annexure ‘A’).

The second period is from January 2014 to July 2014 where the salary was pegged at $477.22 (Collective Bargaining Agreement; 2014 Pharmaceuticals Sector was tendered in proof) (Annexure A1). The applicant was consequently claiming $439.13 x 8 months = $3 513.04 and $477.22 x 7 months = $3 340.54. The total amount claimed for salary backpay was $6 853.58.

The applicant having tendered proof in support of this claim the Court therefore awards him in total USD$6 853.58 in salary backpay.

Benefits

The applicant also claimed benefits to cover the same period. He claimed housing allowance which Allowance was based on the Collective Bargaining Agreement for each year. For the period,  it was submitted Housing Allowance was pegged at $80. The claim therefore was for $80 x 15 months i.e. $1 200. The applicant relied on the Collective Bargaining Agreement tendered in evidence as Annexure (A1). The Court was satisfied with the evidence tendered in respect of the claim. The Court accordingly awards the applicant $1 200.00 in Housing Allowance.

The applicant also claimed School Fees Allowance. He claimed School Fees to cover 3 terms i.e. 3rd Term 2013, First Term 2014 and 2nd Term 2014. The allowance was pegged at $200 per term. In proof the applicant tendered his salary slip for January 2013 which indicated an allowance marked ‘School” for $215.00 (see Annexure ‘A’). The claim is consequently allowed and the applicant is awarded $600.00 in School Fees allowances.

The applicant also claimed Service Allowance which is based on the Collective Bargaining Agreement. The allowance is calculated at the rate of 1% of current salary multiplied by number of years served. The applicant was claiming an amount of $421.69. The applicant is accordingly awarded the same.

The applicant also claimed Overtime Allowance in the amount of $286.37. He tendered in proof a letter by the respondent’s Training and Personnel Officer dated 8th July 2013 in which the author acknowledged that the respondent as at the date admitted liability towards the applicant in the amount of US$286.37 for Overtime Arrears. On the basis of the evidence tendered the applicant is awarded the claim for Overtime Allowance in the amount of US$286.37.

The applicant also claimed Bonus for the year 2013 in the amount of $439.15. His basis for so claiming was that although the benefit was discretionary to the  employer he had been given Bonus for every year he had worked for respondent. He tendered in proof his December 2012  pay slip which reflected a payment for Bonus in the amount of $219.50. The Court however disallows the claim on the basis that Bonus is discretionary at the employer’s instance. The applicant has not established he was contractually entitled to Bonus. The fact that he was awarded Bonus in previous years would not automatically entitle him to Bonus for 2013. The claim is consequently dismissed.

The applicant also claimed for outstanding leave days i.e. 31.2 days as reflected in an application for leave form dated 3rd March 2013 tendered in evidence (Annexure ‘C’). The claim was however not substantiated before me. It is consequently dismissed.

Statutory Benefits

The applicant also claimed cash in leave of notice i.e. $477.20 x 3 months to bring total to $1 431.66. That benefit being a statutory benefit the applicant is awarded the same.

Damages in lieu of reinstatement

The applicant led evidence to show the efforts taken to mitigate his losses. He submitted that he is 30 years.  He has a basic qualification of ‘A’ level certificate. He was employed as a Mechanic Operator at Varichem. He does not hold any other special skills. He could therefore be employed in whatever industry in any position. He had however failed to obtain an alternative job for the past three years partly because the former employer refused to give him references. He is however  a family man and has been surviving by disposing of his personal property and also through well-wishers. The Court was not satisfied that the applicant had made serious efforts to mitigate his losses. His submission that employer had refused to give him a reference letter was not convincing. The Court’s view is with his ‘A’ level qualifications with more diligent effort he could have certainly obtained a reasonable job within 6 months during the relevant period i.e. in 2013. Admittedly it would be more difficult now given the economic meltdown affecting the country but certainly in 2013 he would have been able to secure alternative employment within 6 months. No convincing reasons were tendered before the Court as to why applicant could not be expected to find alternative employment in a shorter period than three years. On that basis the Court awards him 6 months in damages for loss of employment i.e. $477.20 x 6 months  = $2 863.20.

In the circumstances I make the following order;

The applicant’s claims for bonus and outstanding leave days are dismissed.

The respondent shall pay the applicant the following :

Salary backpay 						US$6 853.58

Housing allowance						US$1 200.00

School Fees							US$   600.00

Service Allowance 						US$   421.69

Overtime allowance 						US$   286.37

Cash in lieu of notice 						US$1 431.66

Damages for loss of employment 				US$2 863.20

GRAND TOTAL					          US$13 656.50

The above amount shall be paid together with interest at the prescribed rate calculated with effect from the date of this order to the date of payment in full.

Machaya & Manyangadze – applicant’s legal practitioners

Muza and Nyapadi – respondent’s legal practitioners