Loveness Goverah v NetOne Cellular & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE
JUDGMENT NO LC/H/187/24
CASE NO LC/H/986/23
7 FEBRUARY 2024 & 24 APRIL 2024
In the matter between:-
LOVENESS GOVERAH
APPLICANT
NETONE CELLULAR
1st RESPONDENT
F.V. MAROVANYIKA
2nd RESPONDENT
Before the Honourable Kudya J
For the Applicant
Mr T. Chagadamba (Legal Practitioner)
For the Respondent
Adv. T. Mpofu (Legal Practitioner)
KUDYA, J:
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| 35 months salary      | US 623,309,07 | US 780,562,19 |
| School fees           | US 29,427,69 | US 41.941,20  |
| 12 months damages     | US 213,705,97 | US 267,621,32 |
| Gratuity              | US 368,307,69 | US 464,100,77 |
| Fuel                  | 7 000 litres | 10710 litres |

The applicants submit that the above sums are arrived at by taking the ZWL figures which were at play at the time of their order for reinstatement and multiply that by the exchange rate with the USD. It is their view that such a formula is the one which can give them realisable value for their job losses especially if regard is had to the volatility of the ZWL and its repeatedly reduced value. They claim that an award made in ZWL using the ZWL rates applicable at the time when they lost their jobs would not adequately compensate them.

In response to the quantification on the respondent states that indeed reinstatement is no longer an option and that applicants are indeed entitled to back pay and damages. It hastens to mention that its efforts to engage with the applicants on meaningful and reasonable figures has been in vain as applicants have stuck to their position that they should be paid USD value rated salaries as at the time when it became due. It reasons that there is no legal basis for the applicants to be awarded USD rated figures yet their entitlement was in ZWL and such was and is still legal tender. It states further that the applicants are only entitled to 20% of the fuel allowance if regard is had to the fact that the fuel policy stated that 80% was for operators/business and 20% for personal use. It reasons therefore that applicants are only entitled to their 20 percent only.

A reading of the papers on record and submissions made by the parties speak to the fact that the main contest is on the currency issue. This is so notwithstanding the fact that when the employer presented its oral submissions it sought to argue that there was no more consensus or common position to talk about since the negotiation had all been in vain. It is settled that damages are meant to put an employee in the position he would have been had it not been for the job loss. See Ambali vs Bata 1999(1) ZLR 417(5). It is also equally settled that damages connote be both back pay and damages such .... calculated as up to the period which the employee is expected to have gotten alternative employment given his/her age, qualifications etc. See Ambali (Supra)

In the case at hand both applicant’s contracts were about to expire due to retirement hence their claim of only 12 months damages and 35 months back pay. It is also worth noting that the period for which the applicants were to be paid the respondent was remunerating its employees in ZWL. There is therefore no legal basis for the court to be asked to convert the ZWL and award USD salaries or the equivalent which if the applicants were still on the job would not have been entitled to. That the ZWL has continued to lose its value is not justification for converting the applicant’s salaries to USD.

The legal position determining at the time of the instant case is, distinct from what obtained during the cases of Madhatter v Tapfuma SC 299/12 and Samanga v Fleximail SC 21-14 where there was no valid currency to talk about. The same cannot be said of the instant case. It is indeed regrettable that the currency which has continued to spiral downwards but the law has legislated that it is legal tender and the currency for accounting purposes. Given that scenario the court is persuaded by the respondent’s argument that the applicants entitlements should be as tabulated by the respondent’s taking the month on month changes in the salaries as per the ZWL calculation tables on file. It is noteworthy that the issue of fuel entitlement was clarified by the human resources policy clause which was tendered to the court after the court requested that such position be clarified as there was nothing to back it on record. The issue having been put to rest by the clause in the manual the court was satisfied that the calculus that was the one by respondent’s which was in sync with the law.
 In the result the quantification application succeeds to the extent that applicants be paid damages as per the table tendered by the respondent the cumulative amounts stated therein as well as the one stated therein.

**IT IS ORDERED THAT**

Application for quantification of damages be and are hereby granted.

Respondent to pay Loveness Goverah ZWL 80 052 596,49 and 1412 litres of fuel

Respondent to pay Tauya Mugwagwa ZWL 101 940 952,32 and 2188,60 litres if fuel,

Each party to bear own costs.

*Atherstone and Cook*, Applicant’s Legal Practitioners

*GGG*, Respondent’s Legal Practitioners.


LC/H/2024
LC/H/
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