Kudzayi Matiyenga v Stanbic Bank

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/157/2014
HARARE, 13 NOVEMBER 2013
CASE NO. LC/H/157/2014
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/157/2014

HARARE, 13 NOVEMBER 2013			              CASE NO. LC/H/333/11

& 28 MARCH 2014

In the matter between:-

KUDZAYI MATIYENGA			   	   Appellant

And

STANBIC BANK					  Respondent

Before Honourable B.S. Chidziva, Judge

For Appellant		Mr C Mukome (Legal Practitioner)

For Respondent		Mr. I. Chagonda (Legal Practitioner)

CHIDZIVA J:

This is an application for quantification of damages.  This quantification came after the appellant who was employed as a Bank teller was dismissed by the respondent for failing to comply with standing instructions.  Appellant appealed to the National Employment Council for the Banking Appeals Board and the board upheld his appeal. The Board ordered that appellant should be reinstated without loss of salary and benefits.  The appellant (Stanbic Bank) then appealed to this court against this decision on the 20th of June 2011.

However on the 17th of January 2013 the respondent withdrew the appeal subject to it paying the applicant damages in lieu of reinstatement failure of which they would approach the courts for quantification.

When the parties appeared before this court on the 15 of May 2013 Mr. Mukome indicated that they were going to file a deed of settlement by the 22nd of May 2013 Mr. Chagonda confirmed that.

The parties appeared before me again on the 13th of November 2013 and Mr. Mukome indicated that their borne of contention with the respondent was back pay.  In their submissions the applicant told the court that;

Respondent’s argument is that the parties, by consent, agreed that Applicant either be reinstated or be paid damages.  In turn Respondent chose the latter which excuse it from the burden of paying back pay.

Respondent filed the appeal and chose to withdraw it.  Paying damages in lieu of reinstatement does not exonerate the respondent from paying back pay.

The issue of back pay has nothing to do with computation of damages in lieu of reinstatement because back-pay is due whether one is reinstated or not.  Payment of back pay is due for the period the employee was not going to work.

Applicant’s back pay was from the date of dismissal to the date that Respondent abandoned appeal and the order for reinstatement was made that is 17th January 2013.  Applicant accrued 135,5 days which should be paid out.

The respondent in their submission told the court that

The judgment by this court that was made on the 17th of January 2013 is clear and unambiguous.  It states that applicant is entitled to reinstatement with no loss of salary and benefits and alternatively damages in lieu of reinstatement.

Parties have agreed on the payment of damages in lieu of reinstatement.  The parties are disagreeing on the quantum of damages and mostly on the issue of back-pay.

The back pay should be paid from the date of wrongful dismissal to that date applicant should have with reasonable diligence secured alternative employment.

Applicant should have obtained alternative employment within a period of twelve (12) months.

Notice pay is not claimable and cash in lieu of leave should be restricted to ninety (90) days.

What is to be decided in this case is

Whether the quantum of damages has been agreed upon.

Whether Applicant is entitled to back pay and other benefits.

Respondent should pay costs of this application.

The letter dated 16 May 2013 from Atherstone and Cook addressed to Messrs M.C. Mukome legal practitioners stated that;

“We refer to the above matter and in particular our attendance is the Labour Court.  We confirm that the matter has been settled on the following basis:

That your client be paid damages inclusive of back pay of 18 months’ salary at the salary of USD757,76 together with ninety (90) days cash in lieu of leave.

Please let us have a Deed of Settlement for your signature.”

In response to the letter dated 17th May 2013 Mr. Mukome stated that;

“Kindly be advised that our client is not agreeable to the terms of settlement as per the discussion at the Labour Court between your Mr. Chagonda and our Mr. Mukome. It also occurred to us after a second reading of the Oliver Chiriseri & Anor -v- Plan International case that the ruling by the Supreme Court is not applicable herein.  This because the NEC Appeals Board could not order payment of damages in lieu of reinstatement as of the 29th April 2011.”

These two letters clearly show that no agreement was reached by the two parties.  There was no deed of settlement reached.  If reached it was not endorsed by this court. The quantum of damages was therefore not agreed.

The second issue to be decided is whether the applicant is entitled to back pay.  If he is entitled to back pay for which period should it cover.

In the case of Leopard Rock Hotel Company (Pvt) Ltd v Van Beer 2000 (1) ZLR page 251 the Supreme Court had this to say on the issue of back pay.

“Back pay is thus a concept associated with reinstatement.  If an employee is reinstated, she will normally be awarded back pay.  If she succeeds in proving wrongful dismissal, but is not reinstated, she will be entitled to damages.  A major element of which will be back pay.  Perhaps, more correctly, one should say the damages will be assessed by reference to the back pay lost.  But here the back pay will be limited to a period from the date of wrongful dismissal to a date by which she could, with reasonable diligence, have obtained alternative employment.”

In the case of Kuda Madyara v Phoenix Industries (Pvt) Ltd t/a  Rae Mine 2002 (2) ZLR 269 (S) at page 273 it was held that

“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 these 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 contract.”

Both cases are agreeing on the issue of back pay.  However respondent is arguing that the parties had by consent agreed that  applicant should be reinstated or be paid damages.  The Respondent argues that they chose to pay damages and this exonerated them from paying back-pay.  This court has already found that there was no agreement or Deed of Settlement between the parties.  This therefore means that the applicant is entitled to back-pay.  However the issue which remains to be determined is the period of back pay.  The applicant has stated that the back pay runs from the date of dismissal to the date that Respondent abandoned the appeal and an order for reinstatement was made that is the 17th of January 2013.  The respondent on the other hand has told the court that the back-ay should run from the date of wrongful dismissal to a date by which the employee should have with reasonable diligence obtained alternatively employment.  A case in point is Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 where it was stated that when a person is dismissed, he is obliged to get alternative employment in order to mitigate his loss.  The respondent has argued that applicant was supposed to have secured alternative employment within (12) twelve months.  It was further submitted that applicant should have evidence showing that he tried to look for alternative evidence.

The applicant has not provided proof that she looked for alternative employment during the four years.  The respondent has not explained why the applicant should not claim notice pay and why the cash in lieu of leave should only be restricted to 90 days when the applicant accrued 135,5 leave days.  The respondent has not disputed payment of bonus which was paid to other employees.  Payment of damages in lieu of reinstatement which is equivalent to (12) twelve months salary has not been disputed.

Although applicant has not shown proof of her search for alternative employment it is common knowledge that in today’s economy securing the job of a bank teller is difficult these days,  there are retrenchments and many companies are employing workers on short term contracts.  The applicant therefore cannot be penalised for failing to secure a job in the circumstances when the dismissed was unlawful.In view of the foregoing the applicant’s claim stands and the Respondent is ordered to pay the applicant as follows:

Back-Pay

September 2009 – June 2010 ( US546 x 10months) = $5460

July 2010 – June 2011 (US639 x 12 months )	        = $7668

July 2011 – December 2011 (US795 x 6 months)      = $4070

January 2012 – January 2013 (US834 x 13 months)   = $6842

= US$28 040

Cash in lieu of leave (134,5 days)			          = US$3739

Notice Pay (US$834 x 3)					= US$2502

Bonus								= US$2814

Cash in lieu of reinstatement (US$10 008 x 3 years)	= US$30 024,00

Total								    US$67 119,00

Each party shall bear its costs.

M.C. Mukome, Appellant’s legal practitioners

Atherstone & Cook, Respondent’s legal practitioners