Leonard Chisina v Zimbabwe Electricity Transmission and Distribution Company (Private) Limited

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IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/304/25
HARARE, 24 OCTOBER 2024
CASE NO. LC/H/269/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/304/25 HARARE, 24 OCTOBER 2024		CASE NO.	LC/H/269/25

LEONARD CHISINA	APPLICANT

ZIMBABWE ELECTRICITY	RESPONDENT TRANSMISSION AND DISTRIBUTION

COMPANY (PVT) LTD

Before the Honourable G. Musariri, Judge:

For Applicant	- P. Makuwaza, Attorney

For Respondent	- C. J. Mahara, Attorney

MUSARIRI, J:

On the 19th November 2021 this Court issued a judgment in terms of which it ordered respondent to reinstate applicant’s grade (after unlawful demotion) and pay damages arising from the demotion. The parties engaged each other but failed to settle the amount of damages payable. Then on 2nd September 2024 applicant filed the present application for quantification of the damages by this Court. Respondent opposed the application.

The pertinent parts of applicant’s founding affidavit stated that

”3.5.	Pursuant to the judgment stated above, I approached the respondent seeking payment of damages in lieu of reinstatement since reinstatement was no longer possible. The respondent came up with its quantification of my damages being the variance between Grade EL1 and Grade D4 salary and benefit. It computed

my salaries, bonuses, pension, holiday benefits and it came up with the figure of

US $2,671,516.73 since my contract of employment was denominated in United States dollars….. They excluded medical aid, air time and fuel, the issue of compensation of use of inappropriate vehicle and vehicle disposal to me. The total claim therefore will now amount to US $2,757,401.73 as explained below.

3.6	At the time I was demoted I had a benefit of 340 litres of fuel per month as an EL1 grade employee. When I was demoted it was reduced to 240 litres per month under Grade 4. This means I am owed 100 litres per month times 75 months from March 2015 to May 2021. This gives a total of 7500 litres times US $1.61 being the current diesel pump price. As such I am entitled to US $12 075.00 for fuel.

Regarding airtime and data benefit, I was getting 200 units of airtime and 100 units of data under grade EL1 which was reduced to 100 units of airtime and 50 units of data under D4. This created a variance of 150 units for both data and airtime per month times 75 months which gives a total of 11 250 units times US

$1 for every unit of airtime and data. This means I am owed the total sum of US

$11 250 for the airtime and data benefits.

When I was demoted in 2015 I was due to be allocated a motor vehicle under grade EL1 which was valued at US $90 000 in terms of the Motor vehicle

policy …. Because of the demotion I ended up being allocated a BT 50 applicable to D4 Grade valued at US $50 000 as per the policy …. I am therefore entitled to US $40 000 for the 5 year period from 2015 to 2020.

In terms of the motor vehicle policy I was entitled to purchase the motor vehicle under EL1 in 2020 upon expiration of the 5 year term. This did not happen. I was entitled to purchase the vehicle at net book value or 20% of the market price whichever is higher. I am therefore entitled to purchase the car at book value or alternatively if the car is not available for purchase I must be paid US $ 18 000 being 20% of US $90 000.

I believe therefore that I am entitled to the sum of US $ 2,757,401.73 being my arrear salaries and benefits payable as 40% in United States dollars and 60% in Zimbabwe Gold Currency at the prevailing bank rate at the time of payment as provided for by the Government Guidance Circular 4/2023 dated 19 July 2023 ….”

On the other hand respondent countered via  its opposing affidavit thus,

“6.	I am advised that there have been changes in our currency laws as well as changes

in our monetary policies. I am further advised that the claim of US $ 2,757 401.73 as damages in lieu of reinstatement does not take into consideration the changes in our currency laws and monetary policies. Thus, it is unjustified and unfounded.

…... The respondent maintains that there is no basis upon which the applicant can claim fuel allowances in the sum of $12 075.00 without justifying the currency he is using. In any other event, the fuel benefit was not a regular part of the employee’s contract of

employment, thus, it cannot be included in the calculation of damages for lost benefits during the period in question.

9	There is no legal justification for this claim (airtime and data) denominated in

United States dollars. The applicant is enjoined to provide this Court with a computation showing that the United States dollars allowances it was entitled to still have the same value in today’s market.

10.   .…... The value of US $ 40 000 has not been established by the Applicant. The

respondent’s motor vehicle policies provide the manner in which motor vehicle are disposed and the applicant is required to satisfy the same.

15.  There is no basis for this Honourable court to grant the relief being sought. Further, the applicant has not established a case against that respondent which justifies costs on a legal practitioner and client scale.

Wherefore, the respondent prays that the applicant be paid his damages in lieu of reinstatement in local currency.”

Analysis

It is common cause that the measure of applicant’s damages is the difference in salaries and benefits between the position of Metering Manager and Sectional Engineer over the period (75 months) of applicant’s unlawful demotion on 9 March 2015.

Applicant based his claim for the salary differential on the computation provided by respondent in its letter to him dated 10 May 2022. the figures are as follows;

The computation does not show the currency in which it was denominated. Applicant argued that the applicable currency was USD because his salary was in USD whilst respondent argued it was ZWL. Respondent relied on its subsequent letter dated 05 February 2024 which read in part,

“3.	With regards to payment of outstanding salary and benefits, we are kindly requesting the judgment you are basing your request on, for payment to be made in foreign currency.”

This shows that up to that stage respondent was of the view that its offer was denominated in ZWL. Respondent stated that it was paying salaries in that currency all along. On the other hand applicant relied on his contract of employment dated 1st July 2014 wherein his salary as Metering Manager was denominated as USD 3, 104.00 per month. However, it is such contractual obligations which converted as from USD to ZWL at the parity rate (one-to-one) in terms of section 4 (1) (d) of Statutory Instruments No 33 of 2019 promulgated on 22 February 2019. Therefore this Court finds that respondent’s offer was denominated in ZWL.

Applicant relied on the case of

Unifreight vs Mashinya CCZ 13/24 Per Patel JCC

“While damages payable to the respondent by applicant were capable of being calculated in United States dollars before the effective date of S.I. 33 of 2019, they had not been so agreed or quantified and therefore expressed in that currency at any time before that date. They only became a liability in the form of a judgment debt, within the of S4 (1) (d) of S.I. 33 of 2019, after the effective date of 22 February 2019.”

This Court respectfully considers the Unifreight case as distinguishable. It refers to a situation where damages are yet to be assessed. The present case is strictly not about damages but underpayment. The judgment LC/H/233/21 dated 18 November 201 speaks of “damages.” The term was used in a broad sense to encompass the real remedy for underpayment which is payment of the outstanding differential.

Applicant based his claim on respondent’s computation. Therefore he is bound by the figures in that computation. The computation covers differentials in salaries and other allowances totalling ZWL $2, 671,

516.73. Any other entitlements had to be justified by applicant on the principle that he who alleges must prove.

Fuel

The contract of employment dated 1st July 2014 does give an explicit fuel benefit.

Clause 10 reads that

“You will be allocated a personal issue motor vehicle for business and private use in terms of the Group’s motor vehicle policy.”

The said motor vehicle policy allocated appellant’s grade 340 litres fuel per month as follows:

“The following ordinary monthly mileage and fuel limits for both business and private use shall be observed provided that as a general principle, a vehicle will be used more for business than private.”

The wording shows that the allocation was contractually due contrary to respondent's argument that the benefit was discretionary. The Court concludes that the claim for the value of the differential in the sum of US $ 12 075.00 is justified. It is today’s value of the fuel benefit.

Medical Aid

The claim was abandoned during the course of the hearing by this Court.

Airtime and Data

The employment contract in clause 9 provided that

“A suitable Mobile Phone Handset and Airtime equivalent to 200 units.”

Appellant quantified the differential in the sum of US $ 11, 250.00. The figure was not seriously disputed.

Motor Vehicle

Appellant claimed an amount of US $ 5 898.40 as the differential in the value of his motor vehicle benefit. Respondent agreed with this figure but insisted it should be paid in local currency at parity rate.

Conclusion

The differential for salaries and allowances offered by respondent amount to ZWL$ 2,671 516.73. In terms of S.I 60/24 the ZWL $ was converted to new ZIG$. The ZIG/ZW$ conversion factor is 2 498.72 42 per the Reserve Bank of Zimbabwe Press statement dated 06 April 2024. The amount therefore converts to ZIG$ 1 069.15.

Appellant’s entitlements are made up as follows

Wherefore it is ordered that;

The application for unpaid salaries and benefits be and is hereby granted:

Respondent shall pay the said salaries and benefits in the amount of ZIG $ 1 069.15 and US$29,223.40; and

Each party shall bear its own costs.

G. MUSARIRI J-U-D-G-E