M. Chipindura V Pioneer Coaches

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/274/2014
HELD AT HARARE ON 20 JUNE, 2013
CASE NO. LC/H/206/2009
JUDGMENT NO. LC/H/274/2014
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IN THE LABOUR COURT OF ZIMBABWE      	JUDGMENT NO. LC/H/274/2014

HELD AT HARARE ON 20 JUNE, 2013			CASE NO. LC/H/206/2009

& 23RD MAY 2014

In the matter between:-

M. CHIPINDURA						-	Applicant

And

PIONEER COACHES					-	Respondent

Before The Honourable B.T Chivizhe: Judge

For Appellant 	-	Mr. C. Chisasa (ZCTU Paralegal Officer)

For Respondent 	-	Mr C. Gumbo & Mr A. Mukupuka (Human Resources

Manager)

CHIVIZHE, J.

The matter was placed before me as an application for quantification of damages pursuant to a judgment of this court handed down on April 2011 the operative part of which reads:-

“That the arbitration award made by the Honourable K Segula on 2nd July 2008 2008 is hereby set aside;

That Respondent shall reinstate Appellant without loss of salary and benefits; and

That if reinstatement is untenable, Respondent shall pay Appellant damages for loss of employment in a sum either agree by the parties or assessed by this Court.”

The material background facts are as follows;

The Applicant was employed by the Respondent as a bus washer from 2003.  The Labour Court found that he had been unlawfully dismissed and handed down the order as reflected supra. The Respondent, having opted out of reinstatement the Applicant approached this court for quantification of his claims.  The original claim was for $34 880.27 to cover back pays and damages in lieu of reinstatement.  That claim was however supplemented through papers filed on the 18th of September 2012 to reflect a total claim for $44 062.56.

On the 18th of September, 2012 the court directed the parties to pursue an out of court settlement in respect of the Zimbabwe dollar era component of the claim i.e. from December 2007 to January 2009.  The parties failed to meet.  The matter was again reset for the 12th of March 2013.  The Applicant submitted yet another claim this time of $53 549.76.  His explanation was that he had overlooked to include medical aid and pension.  The Respondent through supplementary heads objected to the filing of the fresh claim.  The Respondent also tendered its offer for settlement of all the claims.  I address this point below.

There is clearly a dispute between the parties as to when the claim for back pays commences.  The Applicant has in his claim submitted the date as January 2007 whereas the Respondent in its offer letter dated 12 March 2013 refers to January 2008.  It is trite that back pays are normally calculated from the date of unlawful dismissal up to the date of the order of the court.  The date of dismissal is however not discernible from the record.  However, it is clear from the record that the matter was referred for conciliation after Applicant’s purported dismissal.  The effective date for calculating back pays is as submitted by the Respondent January, 2008.  The cut-off point for payment of back pay is the date of this court’s judgment which is April 2011.  The cut-off point cannot be the date of payment of the claim as suggested by Applicant.

The first claim made by the Applicant is for back pay.  The claim is in two parts one part covers the Zimbabwe dollar era i.e. December 2008 to 2009 and the second part covers the US dollar era i.e. February 2009 to April 2011.  The parties were directed to agree on a conversion rate in respect of the first part.  The parties however failed to agree.  Although the Applicant submitted in its papers filed that the parties had agreed on a salary rate of $420 the Respondent disputed this.

The Respondent instead tendered in full and final settlement the amount of $7 513.14 to cover the back pays accrued in Zimbabwe dollar (converted at the rate of US$20 for months from January 2008 to January 2009 i.e. 20 x 14 = $280); the back pays accrued in the US dollar era i.e. $4 786.64; allowances such as housing, transport, bonus for January to April 2011 (4 months) and finally damages in lieu of reinstatement.  It was Respondent’s further submissions that given the Applicant’s position he would have been able to obtain alternative employment within a period of six months.  The Respondent was therefore tendering as damages in lieu of reinstatement an amount of $1 081.50 calculated on the basis of current salary of $180.25 x 6 months.

The claim by Applicant for back pay accrued in Zimbabwe dollar is clearly unreasonable at $420.00 per month when the salary rate at the entry of the US dollar era in February 2009 was pegged at US$100.14. In the absence of an agreement between the parties on a conversion rate the court proposes to adopt $50.00.  The total back pay for the Zimbabwe dollar era shall be calculated as

$50 x 14 = $700.00.  I so award.

The second part of the claim for back pays covers the US$ period.  The applicant claimed $10 650.85 inclusive of vouchers, leave days, pension, gratuity, medical aid cover and bonus.  The Respondent on the other hand tendered $4 786.64 in total to cover basic salary.  In addition the Respondent also tendered housing allowances at $25 x 27 months = $675, transport allowances at $20 x 27 months = $540.00, bonus at 50% in 2009 for $90.00; bonus for January to April 2011 (4 months) at $60.00.  The Respondent submitted that there was no bonus paid in 2008 and 2010, and therefore it was not prepared to pay for that.

I address initially the claims for pension and gratuity.  The claims are statutory claims which the Applicant is clearly entitled to.  The Respondent however submitted that as pension is paid directly into a pension fund by the employer the claim ought to be dismissed.  I agreed.  The Appellant also claimed medical allowance and tendered proof in the form of a salary slip.  That evidence was however challenged by Respondent on the basis that the salary slip produced did not pertain to Appellant and in any event covered zim dollar era.  The court consequently dismissed he claim as unsubstantiated.  The Applicant is also clearly entitled to leave days.

With regards bonus the Respondent tendered bonus for 2009 and 2011 and disputed claims for 2008 and 2010 on the basis that it did not pay bonus for these years.  The Applicant failed to adduce any evidence to disprove this assertion.  In the absence of any proof tendered by the Applicant I would consequently dismiss claims for bonus for 2008 and 2010 and award the bonus for 2009 and 2011 as tendered by the Respondent.

The Applicant also claimed ticket vouchers.  The Respondent submitted that as these are non-convertible and not carried over and were in any event subject to availability of seats the Applicant was not entitled to these.  The benefit was not proved before the court to be contractual.  I consequently dismissed the claim.

I now turn to address the issue of mitigation of damages.  It is well established in our law that for an employee who considers that he has been unlawfully dismissed he should mitigate his damages by taking up alternative employment.  The Applicant in casu submitted that he had attempted to obtain alternative employment but had failed to obtain employment.  He is consequently claiming a total of thirty six months as per the Kuda Madyara decision.

On the 24th of June 2013 the last date of set down of the matter the Respondent raised the point that the Applicant had mitigated his loss by obtaining alternative employment.  It was submitted that the Appellant had obtained employment at St Lucia Conference Centre in 2008.  The Appellant disputed the assertion and put the Respondent to the proof thereof.  The Respondent was however not in a position to tender evidence to prove their assertion.  The court consequently granted Respondent leave to file such evidence within two weeks of the date of hearing.  On 10th October, 2013 the Registrar penned a letter to the Respondent’s Representatives to remind them to file with the court the evidence as directed on the 23rd of July 2013.  There was no response to the letter.  The Registrar then referred the file to myself for hand down of judgment.  As at the time of writing of this judgment the Respondent still had not tendered such proof.

In the circumstances the submission by the Respondent that Appellant mitigated his loss by obtaining alternative employment is dismissed as baseless.  The Applicant’s claim for damages in lieu of reinstatement is pegged at 36 months. No evidence was adduced by Appellant to show any efforts made to obtain alternative employment. The Respondent on the other hand tendered a period of 6 months x $180.25 basic pay to bring total to $1 085.50.  As a bus-washer not requiring any special skills it is my considered view that he would have reasonably found alternative employment within 18 months.  He is therefore entitled to $180.25 x 18 bringing the total to $3 244.50 in damages in lieu of reinstatement.

Lastly the Appellant claimed interest on the back-pay at prescribed rate.  The Respondent has raised no objection to the claim.

In the circumstances, it is hereby ordered as follows;

The Applicant’s claims for medical aid, transport vouchers are dismissed as unsubstantiated.

The Applicant’s claims for pension/gratuity being statutory benefits are also dismissed.

The Respondent shall pay to the Appellant the sum of US$9796.14 together with interest at the prescribed rate from April 2011 to the date of payment in full.

There is no order as to costs.