Michael Dzikiti v F & G Sports and Night Club

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/800/2014
HARARE, 11 NOVEMBER 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/800/2014

HARARE, 11 NOVEMBER 2014	              		     CASE NO. LC/H/615/14

AND 05 DECEMBER 2014

In the matter between:-

MICHAEL DZIKITI				-		Appellant

And

F & G SPORTS AND NIGHT CLUB		-		Respondent

Before Honourable L.M. Murasi, Judge

For Appellant	-	Ms L. Mkuhlani (Legal Practitioner)

Respondent	-	In Default

MURASI, J:

Appellant was employed by the Respondent as waiter.  He was engaged for eight (8) days and was allegedly dismissed.  The matter finally landed in arbitration.  An initial arbitration award was set aside by Justice KUDYA.  In the second arbitration, the Arbitrator found in favour of Appellant.  Appellant is not satisfied with this award and appealed to this Court.

Appellant’s main contention is that the Arbitrator did not order his reinstatement.  Secondly, Appellant avers that the calculations made by the Arbitrator in respect of the damages due to him in lieu of reinstatement were wrong.  It was submitted on behalf of Appellant that the Arbitrator was enjoined to take the figure that was given by Respondent as being the salary that was due to him.

The Court will proceed to consider Appellant’s first ground of appeal.  It was Appellant’s contention that the Arbitrator should have ordered his reinstatement without loss of salary and benefits.  The Arbitrator acknowledges on the award that this was Appellant’s prayer.  However the Arbitrator makes the following finding:

“However, since a considerable time has lapsed since the termination of such contract and also considering the period worked and the size of the establishment, I presume the payment of damages, a major element of which will be back-pay should suffice.  The back-pay will be limited to a period from the date of wrongful dismissal to a date by which he could have reasonably obtained alternative employment.”

What is the position of the law in this regard?  The first port of call is the recognition in section 98 (9) of the Labour Act, ([Chapter 28:01] that in hearing and determining any dispute an arbitrator shall have the same powers as the Labour Court.  Note should also be taken of the fact that when ordering a reinstatement or damages:

“(the) onus is on the employer to prove that the employment relationship is no longer tenable, taking into account the size of the employer, the situation in the labour market and any other relevant factors.”

A reading of the findings of the Arbitrator above shows that consideration was made of the period worked and the size of the establishment.  As the employer was absent, the Arbitrator could not take any of its considerations into account.  Appellant’s preferences were clearly acknowledged by the Arbitrator.

However, the Arbitrator chose not to take Appellant’s preferences into account.  The Arbitrator indeed fell into error in this regard.  It is trite that when a dismissal is found to be substantively unfair the primary relief is reinstatement.  However the employee may choose compensation rather than reinstatement.  In this case Appellant had prayed for reinstatement. Where an employee is reinstated, the employee is entitled to resume employment and in addition he becomes entitled to his wages and other moneys that he would have been paid during the period of his unfair dismissal.  Some prefer to call it “back pay”

In the second ground of appeal, Appellant’s Counsel submitted that the calculations made by the Arbitrator were wrong.  It was stated that the Arbitrator misdirected herself both on the formula she used and the figures she used in the calculations.  It is pertinent to have a look at precedent in the circumstances.  ZIYAMBI JA had this to say in REDSTAR WHOLESALERS vs EDMORE MABIKA S 52/05 at page 4 of the cyclostyled judgment:

“What is in issue is the due date to which the back-pay was payable. It has been decided by this Court that the relevant date, namely the date to which back-pay should be payable is the date on which the order of reinstatement is made.”

The Arbitrator’s ruling was that “the back-pay will be limited to a period from the date of wrongful dismissal to a date by which he could have reasonably obtained alternative employment.” The Arbitrator clearly fell into error.  She was mixing the issue of back-pay and damages.  It has been stated in decided cases that back-pay cannot be legally awarded in respect of a period after the date of the order or reinstatement is granted (See HEYWOOD INVESTMENTS (PRIVATE) LIMITED T/A GDC HAULIERS vs PHARAOH ZAKEYO S 32/13. It has also been held that ‘back-pay’ and ‘damagers’ are different concepts but only in the sense that ‘damages’ embodies a wider concept and may include ‘back-pay’.  Having noted the direction pointed to by precedent, it is clear that the Arbitrator mixed the two issues which needed to be separated.

The last issue to be determined is the actual quantification.  The Appellant gave a figure of $350.00 whilst the Respondent stated the figure to be $300,00.  The Arbitrator went on to use what she termed were the gazetted NEC salaries.  The Arbitrator does not give reasons for ignoring the figures given by the litigants.  Further, the Arbitrator does not give any reasons for preferring the gazetted  NEC salary scales.  It is a truism that the Labour Act permits an employer to pay more favourable salary rates above the gazetted NEC rates.  Without giving any reasons, it becomes unclear as to why the Arbitrator chose the lesser figure of $266-23.  It has been stated that:

“.. it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis for an assessment, and it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made.”

The Court is of the firm view that the Arbitrator erred in this respect as no evidence was placed before her to make the necessary calculations.

In conclusion, the Court finds that the appeal succeeds.  The Court makes the following order:

The appeal, being with merit, is allowed.

The arbitral award of F. Mutambirwa dated 24 June 2014 is hereby set aside.

The matter is remitted to the same  arbitrator to:

Make a determination on the prayer for reinstatement requested by Appellant.

To hear evidence on the salary that was payable to Appellant.

Make calculations on the damages payable to Appellant after hearing evidence in this respect.

Assess the “back pay” payable to Appellant from the date of “deemed reinstatement.”

Such hearing is to be held within thirty (30) days from the date of this order.

Respondent to pay costs of suit.

MKUHLANI CHIPERESA LEGAL PRACTITIONERS, Appellant’s legal practitioners