Metal Components v Janet Chimanga

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/106/16
HELD AT HARARE 9 FEBRUARY 2016
CASE NO
JUDGMENT NO LC/H/106/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/106/16

HELD AT HARARE 9 FEBRUARY 2016				CASE NO LC/H/33A/12

& 4 MARCH 2016

In the matter between:

METAL COMPONENTS				Appellant

And

JANET CHIMANGA					Respondent

Before The Honourable E Muchawa, Judge

For Appellant			 In default

Respondent			In person

MUCHAWA, J:

At the hearing of the appeal and cross appeal, in this matter, the appellant was in default despite proper service.  I proceeded to dismiss the appeal with costs.

I however could not grant the cross appeal as prayed for by the respondent as the matter relates to the quantum of damages awarded to her least I would have fallen foul of the trite position that a court in assessing damages cannot simply pluck a figure from nowhere.  I therefore reserved my judgment and this is it.

The respondent was employed as a bookkeeper though an issue in dispute related to who her employer was at the date of purported dismissal on 11 April 2011.  She had been initially employed by KSK Engineering (Pvt) Ltd on 1 December 1998.  This company was then subsequently sold.  The arbitrator found that the appellant purchased KSK Engineering (Pvt) Ltd and was therefore the respondent’s employer at the relevant date.

The appellant was found liable to take on the respondent as an employee and such failure was found to be an unlawful dismissal.  Reinstatement with no loss of salary and benefits was ordered or alternatively, damages in lieu of reinstatement equivalent to nine months salary.

In the cross appeal, the respondent claims that the nine months damage awarded are insufficient and requests damages, equivalent to twenty four months’ salary.

The respondent who appeared as a self actor submitted that she should get the higher level of twenty four months damages because she has not been employed since her dismissal as her legal practitioner advised her to sit and wait for the outcome of this matter.  It was further submitted that she is a single mother, the sole bread winner who has a school going child, rent and medical bills to pay.  I was even urged to award punitive damages.

It appears to me that the respondent was ill advised.  The case of Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 (SC) makes it clear that an employee who has been wrongfully dismissed has a duty to mitigate his loss immediately.  I quote,

“He must look for alternative employment, he is not entitled to sit around and do nothing. If he does not look for alternative employment, his damages will be reduced.  He will only be compensated for the period between his dismissal and the date when he could reasonably have been expected to find alternative employment.”

The respondent did not adduce any evidence regarding any attempts of securing alternative employment but confessed to just sitting and waiting.

The personal circumstances of the respondent as the sole breadwinner and the attendant responsibilities are not a relevant consideration in assessing damages.  Rather, it is about mitigation of loss and none was advanced by the respondent.  See also Chiseri v Plan International SC 56/2002.

As I did not hear any evidence as to how long it would take the respondent to find alternative employment, I have no legal basis to increase the damages as that would be akin to merely plucking a figure from nowhere (See Nyaguse v Mkwasine Estates SC 34/2000)

The request for punitive damages equally fails. There is no evidence to work with to exercise the discretion to award punitive damages as set out in section 89 (2) (c) (iii) proviso (iii).

Accordingly, the cross appeal is dismissed for lack of merit.