Kudzai Kwangwari v FBC Bank Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/222/25
HELD AT HARARE 16 JUNE 2025
CASE NO. LC/H/340/25
AND 20 JUNE 2025
---------


IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE 16 JUNE 2025

JUDGMENT NO. LC/H/222/25

CASE NO. LC/H/340/25

AND 20 JUNE 2025

IN THE MATTER BETWEEN:

KUDZAI KWANGWARI	APPLICANT

AND

FBC BANK LIMITED	RESPONDENT

Before Honourable Mr. Justice L.M. Murasi

For Applicant

For Respondent

Mr. T. Kabuya

Ms. N. Katsande

With Mr. A.K. Maguchu

MURASI J.,

This is an application for quantification of damages. Applicant was employed by Respondent. Allegations of misconduct were levelled against him. The Disciplinary Committee found the Applicant Not Guilty. An internal appeal by the Respondent saw the Applicant being found guilty culminating in his dismissal. Applicant appealed to this Court which upheld the decision of the Disciplinary Committee. Several applications and hearings were conducted in respect of this matter which finally landed in the Supreme Court. The Respondent’s application before that Superior Court was dismissed. This has led to the present application by the Applicant for quantification. This Court’s judgment was rendered on 31 May 2023. It effectively set aside the decision of the Respondent’s Appeals Committee and ordered Applicant’s reinstatement without loss of salary and benefits from date of dismissal. The Court also ordered that in the event that reinstatement was no longer tenable, and parties did not agree on the quantum of damages in lieu of such reinstatement, either party could approach this Court for quantification.

1

Applicant’s Submissions

Initially, Mr. Kabuya had indicated that his client was not going to give evidence. However, the Court insisted that he give evidence since he was present. Applicant’s evidence was to the effect that he was employed by the Respondent in 2003 until the date of his dismissal. When he was dismissed, he held the position of Operations Controller which was a managerial position. He also stated that apart from the basic salary, he was entitled to the payment of school fees for two of his children, was given airtime allowance and was due to be given his long service award. Applicant also stated that Respondent was also due to pay to him an Honorarium since he had completed his Masters Degree and an annual performance-related bonus. Applicant stated that the only written contract was the one he signed at the commencement of his employment tenure with the Respondent and afterwards, he would get written confirmations from the Human Resources Department about his entitlements when he was promoted.

Applicant informed the Court he started applying for new employment soon after his dismissal but did not get any responses. He also stated that he was targeting the banks mainly because that was the area where he had experience. He indicated that if the Respondent had agreed to give him the Reference letter which he had requested, he possibly could have fared better. He was asked to comment about the opinion submitted by the Respondent to the effect that he should have obtained alternative employment within a period of 12 months. He indicated that the opinion could not be correct as he was still unemployed after the expiry of the 12 months. He attributed this to the economic downturn being witnessed in the country. He added that this was the basis for his application for damages for 36 months as he was unlikely to obtain alternative employment soon. Asked by the Court as to how he had been surviving, he stated that he was relying on his wife’s salary as the wife was still employed by the Respondent.

He was cross-examined by Ms. Katsande to some length. Asked whether an Operations Controller could work in any other environment, he stated that it was possible. He was also asked whether he had applied for any open vacancy and his reply was that he had not come across such a vacancy and that he had concentrated on specific institutions. Asked whether he had attended any interviews, he replied that he had not received any responses. He also denied the fact that he could have found alternative employment in 12 months. Ms. Katsande asked him whether he had attempted to get into the informal sector, and his response was that he did not have the resources to venture into that field. Applicant also stated that he made applications to more than six banks and more twice to those banks.

In submissions, Mr. Kabuya stated that after the Court’s Order, Respondent had made it clear that it was not in a position to reinstate the Applicant but pay damages. He further stated that negotiations had been held but had not been concluded as Respondent would then turn to the Courts in the midst of such negotiations. Mr. Kabuya submitted that Applicant had attempted to mitigate his losses but had not been successful as all his applications were not responded to. He added that Applicant was justified in claiming damages for the period of 36 months as this was the period in

2

which he could reasonably be expected to find alternative employment due to the economic situation in the country. He said that the opinion filed by the Respondent could not apply to every employee as each case would depend on circumstances peculiar to it.

Mr. Kabuya stated that Applicant was a managerial employee and could not be expected to receive the basic salary only. He submitted that Respondent had made offers to pay more than the basic salary. He argued that these other benefits which had been offered by the Respondent included school fees, airtime, performance-related bonus, amongst others. He further argued that the stance taken by the Respondent was not correct that Applicant should have produced the contract of employment which provided for these benefits when Respondent was aware that such contracts of employment were non-existent. He stated that Applicant was praying for an Order in terms of the Draft Order.

Respondent’s Submissions

Ms. Katsande stated that they were calling Mr. Leeroy Mudziwepasi to give evidence. Mr Mudziwepasi was asked whether he abided by the affidavit filed of record and he replied in the affirmative.

Asked by Mr. Kabuya why hestated in his affidavitthat Applicant had not donemuch in mitigating his losses, he replied that he was basing his reasons on the opinion given by an expert. The witness was asked why he had stated that no request for a Reference Letter was made, he responded that it was correct that no such request had been made. After being shown a copy of the letter filed of record, he conceded that the letter had indeed been received by the Respondent but had not been brought to his attention as was the practice. Mr. Mudziwepasi further stated under cross-examination that Applicant was only entitled to medical aid apart from the basic salary. Asked on what basis the Respondent had included the issue of school fees in the calculation of damages, his response was that these would be paid on production of invoices. He added that these were paid at the discretion of the employer subject to availability of resources and this would also apply to the payment of bonusses. Asked by the Court as to why he would term the applications made by the Applicant unreasonable, his response was that these were made on the same dates even though to different institutions.

In submissions, Ms. Katsande submitted that the formula used by the Applicant was incorrect as he chose to separate back pay from the other damages. She further submitted that damages are calculated including back pay as forming part of the damages. She stated that in the present circumstances, Applicant had therefore cumulatively sought damages for 42 months. She further stated that damages are calculated based on the reasonable period that it would take for a dismissed employee to find alternative employment with the start date being the date of dismissal. She constantly referred to the Madhatter case for this proposition.

As far as mitigation of losses was concerned, Ms. Katsande stated that Applicant had indicated that he had made several applications but had not received any favourable responses. She argued

3

that Applicant had good qualifications which enabled him to look for employment in other sectors of the economy. She also made the observation that some of the applications had been made prior to the dismissal date, and these should not be considered. She referred to the Gauntlett case in respect of the issue of mitigation. As far as the period was concerned, Ms. Katsande relied on the Proton Bakery case in that in the making an assessment, an applicant’s age, educational qualifications, job market and the economic situation have to be taken into account.

Ms. Katsande stated that Applicant had failed to prove what benefits were contractual and that he was entitled to one benefit, which was the medical aid. She complained that Applicant had used correspondence which had been shared on a without prejudice basis and therefore could not seek to rely on this as evidence of the benefits which were due and available to him. She also attacked the provision in the Draft Order which requested the Court to order the Respondent to provide the Applicant with a Reference Letter.

In response, Mr. Kabuya stated that the separation in the claim was for neatness and he referred to the authority in the Leopard Rock case. He also advised the Court that Applicant had started looking for alternative employment when allegations of misconduct were mooted.

ANALYSIS

The Applicant gave oral evidence. His evidence was straightforward, and he did not appear to be embellishing his testimony during his testimony. His demeanour was good. Heanswered questions put to him during cross examination in a forthright manner. I accept the evidence that he gave. The same cannot be said for Leeroy Mudziwepasi’s evidence. He showed that he would not answer questions put him requiring his own testimony. For example, he declined to state his own observations about the period Applicant was expected to find alternative employment but chose to shelter under the opinion by the expert without giving reasons for so doing. He had to have the letter written to Respondent brought to him to make the concession that the letter had indeed been received by the Respondent. When the Court asked him as to who ordinarily received such letters, he said it was his department but that the particular letter had not been brought to his attention. The Court made a mental note that this was indeed not correct as every document relating to Applicant’s case was referred to their department. When asked about the benefits Applicant was entitled to, he only mentioned medical aid and stated that issues such as school fees were paid at the employer’s discretion when funds were available. This statement cannot be correct as any employment situation would have policies on benefits and the beneficiaries. It is my view that his evidence should taken with a pinch of salt.

The law on the quantification of damages has been the subject of many a decision in this Court and the Supreme Court. In Farm Community Trust v Claudious Chemhere SC 22/13, it was held as follows:

“Damages are meant to place the employee in the position he would have occupied had the contract of employment not been terminated, subject to the duty to mitigate his loss.”

4

In Art Corporation Ltd v Moyana 1989 (1) ZLR 304 (S), it was stated thus:

“The obvious remedy for unjustified, unfair, involuntary termination is re-employment if the employee so wishes and otherwise compensation. The first remedy is not available at common law, the essentiality and reciprocal nature of contractual obligations means that is impossible to force an unwilling party to remain bound to a contract against his will.”

The first port of call is whether the Applicant mitigated his loss after his dismissal from employment. Evidence was placed before the Court that he made numerous applications to banking institutions in the country. Pages 53 to 57 contain emails showing to which institutions the applications were made. In his evidence, Applicant stated that it was mostly to six of the local banks. He was asked why he had not expanded his horizon in these applications and the response was that his experience was in the banking sector and he wanted to find placement in such institutions. The evidence was that he did not receive any responses to these applications.

Respondent attached a report from an expert. The summary reads as follows:

“Taking into consideration, in my professional opinion, backed by 25 years of experience in the recruitment and consultancy industry, it would take an employee with credentials such as Kudzai’s, six months to one year to get formally employed in corporate from using applied job search techniques alluded to, such as responding to job advertisements, advertising in the press, registering with various recruitment agencies, unsolicited applications and ensuring visibility on platforms such as LinkedIn to prospective employers.”

The opinion makes the following telling observation that the ‘traditional, older banks, which represent the majority… would recruit provided his references checked out well.’ This was one of the issues raised by the Applicant that he lacked the reference letter from the Respondent to enable him find alternative employment. The opinion also stated that the younger banks were hiring younger people and ‘cited his (Applicant’s) progressing age as a challenge.’ What is interesting to note is that the preparation of the opinion did not have Applicant’s input. The author did not know to which banks the Applicant had made applications. Of note is the observation that ‘unsolicited applications’ was one mode the Applicant could utilise. Evidence was placed before the Court to show that Applicant did make many ‘unsolicited applications’ in his quest to find alternative employment. The opinion does not give the number of job vacancies witnessed by the author in order to make the finding that ‘End of 2022 into 2023 saw a marked increase in recruitment in the banking, insurance and microfinance.’ This is a bald statement not supported by any facts. It therefore becomes unclear how the period ‘six months to one year’ was arrived at.

On the other hand, Applicant states that the economic downturn has witnessed the fact that where one loses employment, it will be difficult to find alternative employment in a hurry. That the economic scenario continues to harass the potential job seeker is evident. Many courts have taken judicial notice of this fact. I am therefore of the view that the period given by the Respondent’s

5

opinion does not take into account this aspect of the economic downturn correctly as well as individual circumstances. Elsewhere in this judgment I made reference to the fact that Applicant bemoans the absence of a reference letter, and in the opinion, it is acknowledged that a job-seeker has to have ‘his references checked out well’. At the time of the hearing, Applicant had still not found alternative employment. It is clearly beyond 12 months from December 2022. It is thus my considered view that it should take the Applicant a period of 30 months to find alternative employment.

Respondent raised an issue concerning the format used by the Applicant is quantifying the damages. What is the correct position of the law? In Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo SC 32/13, GOWORA JA,(as she then was) had this to say:

“Back-pay cannot legally be awarded in respect of a period after the date of the order of reinstatement is granted. This principle was applied by SANDURA JA in Chiriseri & Anor v Plan International 2002 (2) ZLR 261 at 265 D-G where he stated:

‘As this court stated in Leopard Rock Hotel Co (Pvt) Ltd v Van Beek, supra, at 254 H-255A:

‘…back-pay’ and ‘damages’ are indeed different concepts, but only inn the sense that ‘damages’ is a wider concept. It will normally include back-pay, but may include for example, compensation for loss of promotion prospects, interest, and other elements as appropriate.’

However, there is no basis for awarding the appellants back- pay and benefits inn respect of the period after 29 March 1995, the date on which the order of reinstatement was issued.’”

There are issues which the Court needs to address before determining the quantum of the damages due to the Applicant. It is the averment by Respondent that Applicant was not entitled to any other benefits apart from medical aid. It mustbe remembered that Applicant was a managerial employee. The Court also takes Judicial Notice that there exists a plethora of Collective Bargaining Agreements which provide for benefits for non-managerial employees across the whole divide of industry. Each Collective Bargaining Agreement provides, as a minimum, housing and transport allowances. This also includes the CBA for the Banking Sector. For the Respondent to state that a managerial employee in the Banking Sector would not have a single benefit would be lacking in candidness on the part of the Respondent. A party that conceals material information must be unworthy of the protection or assistance of the court.

Precedent is clear on the issue of quantum of damages. In Aaron’s Whale Rock Trust v Murray and Roberts Ltd & Another 1992 (1) SA 652, it was stated thus:

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this

6

cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the Court to quantify his damages and to make an appropriate award in his favour. The Court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the Court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.”

I should acknowledge that Applicant’s legal practitioners submitted the converted figures from the ZWL to ZWD and the relevant Statutory Instrument governing the procedure for conversion. Respondent did not dispute the figures given by the Applicant as the salary which he was earning at the time of dismissal. Respondent did not dispute Applicant’s averments as to his entitlements to the Christmas voucher, the Honorarium for completion of the Masters Programme and the 20th Anniversary entitlement.

However, Applicant did not justify or give evidence as to his entitlement to the Cost-of-Living Adjustment, Disturbance Allowance and the Cushion Allowance. These are figures which were put in the claim without any justification or documents supporting their claim. There was an outcry from the Respondent that Applicant sought to use information which was provided on a “Without Prejudice” basis. The letter referred to was from the Respondent which supported what the Respondent was prepared to pay to the Applicant. The Labour Court Rules permit a Court to depart from the strict rules of evidence where the Court determines that this would be in the interests of justice. The letter that was attached by the Applicant did not seek to prove that these allowances existed but to corroborate Applicant’s claim that indeed there was a discussion, and Respondent was aware of the existence of such allowances. Having said this, the Court is of the firm view that Applicant, in accordance with the letter dated 14 July 2023, would be entitled to refunds of school fees, Notice Pay, cash in lieu of leave, performance bonus for 2022. The claim for Performance Bonus for the other years is dismissed as Applicant did not place evidence before this Court on the basis of its entitlement. As far as refunds for school fees is concerned, Aplicant only provided two invoices for school fees paid, and the award is going to be made in respect of those two invoices.

Theaward thereforeis for back-pay and damages in lieu of reinstatement for aperiod of 30 months, Notice pay for 3 months, Cash in lieu of leave for two years, performance bonus for the year 2022, school fees refund for two invoices, Christmas voucher for the year 2022, Honorarium for completion of the Masters Degree and payment for twenty years’ service being the 20 year anniversary. As already stated elsewhere in this judgment, some of the claims have been dismissed and reasons provided for such dismissal.

The claim for this Court to order the production of a reference letter to the Applicant is dismissed as such claim is improperly before the Court.

7

The following order is appropriate.

1. The application for quantification of damages in lieu of reinstatement is hereby granted.

2. Compensation is awarded under the following heads:

a. Back-pay and damages for 30 months	USD$18 467-70

ZWD 3462-00

b. Notice Pay for 3 months	USD$ 1846-77

ZWD 345-30

c. Cash in Lieu of leave 2 years	USD$ 1231-18

ZWD 230-20

d. Performance bonus for 2022

e. Christmas Voucher for 2022

f. Honorarium for completion of Masters Degree

g. 20 Year Anniversary

h. Refund for school fees (2 invoices)

USD$3557-46

USD$ 305-00

USD$ 631-00

USD$ 3500-00

USD$ 1795-00

3. The said sums of money shall be paid within 30 days of the date of this Order and MAY be paid at the prevailing rate of exchange on the date of payment.

4. Respondent to meet Applicant’s costs on the ordinary scale.

Matsikidze Attorneys At Law-

Maguchu & Muchada Business Attorneys-

Applicant’s legal practitioners

Respondent’s legal practitioners.

8