Lovemore P Vanhuvaone v Unilever Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/323/13
HELD AT HARARE 17TH MAY 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO LC/H/323/13

HELD AT HARARE 17TH MAY 2013		    CASE NO LC/H/637/11

LOVEMORE P VANHUVAONE					Applicant

UNILEVER ZIMBABWE (PVT) LTD				Respondent

Before The Honourable G Musariri, President

For Applicant		Ms C Maposa, Attorney

For Respondent		Mr T Chiurayi, Attorney

MUSARIRI, G:

On  12TH September 2012 this Court made an order by consent in terms of which Respondent was ordered to pay Applicant back-pay and benefits together with damages in lieu of reinstatement.  The figures were to be either agreed by the parties or assessed by this Court.  The parties failed to agree on the figures resulting in this application for assessment.  Both parties filed papers setting out their calculations and submissions.

Back-pay and Benefits

Respondent conceded back-pay and benefits (from October 2011 to September 2012) calculated as follows:

12 months salary (1920 each)			23 040.00

12 months car allowance				19 344.00

33 leave days					  2 888.00

12 months free parcel				     600.00

7.5% pension contributions (2 months)	   1 728.00

Cellphone allowance				   1 200.00

80% medical aid					   2 563.00

Fuel (@ 1.54 x 12 months( 260 litres)		  4 804.80

Total							56 160.00

Less tax (PAYE)					  7 776.00

Less Aids Levy					      371.64

Balance					     US$48 012.36

Applicant disputed the above calculation.  Firstly he submitted that the monthly salary ($1 920.00) would have been increased to $2 400.00 were it not for his wrongful dismissal by Respondent.  Respondent submitted that Applicant had been placed on a program which disentitled him to any pay increase.  Applicant argued that he was wrongly placed on the program which later resulted in his dismissal.  However there was nothing on record to show that had he not been placed on the program, Applicant would be entitled to the increase.  Pay increases are ordinarily earned by exemplary performance.  Barring such performance one has to show that he was entitled to the increment by reason of some authority either contractual or statutory.  Applicant showed none such authority.

During the course of argument Respondent conceded additional items.  These are a 13th cheque and a Christmas hamper valued at US$50.  During his employment,  Applicant was given meals  and newspapers.   Respondent argued that these were not an entitlement. I disagree.  I am persuaded by Applicant  that because the items were given on a consistent basis they became an entitlement.  I disallow the claims for free parcel and funeral cover.  The free parcel benefit applied to actual purchases.  If Applicant produced receipts of actual purchases he would be entitled to refunds.  None such receipts were produced.  Likewise the funeral cover applied in respect of actual funerals.

Thus the amount for back-pay and benefits conceded by Respondent increased as follows

Conceded amount		48 012.36

13th cheque			   1920.00

Christmas hamper                     50.00

Newspapers                          1908.00

Meals                                        762.00

Total			            50 744.36

Damages

Applicant claimed 48 months’ salary as damages in lieu of reinstatement.  Respondent argued that the claim was a thumb-suck because no basis was laid for it.  Respondent relied upon an opinion rendered by one Patrick Kariwo a Recruitment and Training Consultant.  A copy of the opinion dated 18th January 2013 is filed of record.  The relevant portion read,

“My assessment is that this individual (Applicant) should be able to secure alternative employment in 6 months to a year.”

The opinion was based on Applicant’s qualifications, youngish age and experience.  The opinion was not rendered in the form of a sworn statement.  Neither were the qualifications of the consultant set out. That notwithstanding, I am persuaded by the reasoning of the consultant.  It is acknowledged that the job market is tight.  However young professionals, like Applicant, stand a better chance of finding alternative employment compared to the majority of job-seekers.  I consider that 12 months is the period Applicant could reasonably be expected to secure alternative employment. Accordingly his damages are the equivalent of 12 months’ salary and benefits.  That coincides with the figure for back-pay and benefits which is US$50 744.36

Thus the net amount owed to Applicant by Respondent is,

Back-pay and benefits				50 744.36

Damages						50 744.36

Total						        101 488.72

Less CABS loan                                                    18 000.00

Less Car loan					24 175.29

Balance due					    US$59 313.43

Wherefore it is ordered that,

Respondent shall pay Applicant the sum of US$59 313.43 together with interest thereon at the prescribed rate from the 12th September 2012 to the date of payment; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT