Montana Meats v David Manyau

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/820/2016
HARARE, 25 OCTOBER 2016 &
CASE NO LC/H/APP/746/2016
13 JANUARY 2017
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/820/2016

HARARE, 25 OCTOBER 2016 &			           CASE NO LC/H/APP/746/2016

13 JANUARY 2017

In the matter between

MONTANA MEATS							APPLICANT

Versus

DAVID MANYAU								RESPONDENT

Before the Honourable Muchawa J

For the Applicant	Ms S M V Nyathi (Legal Practitioner)

For the Respondent	Ms U Goremusandu (Trade Unionist)

MUCHAWA J:

This is an application for quantification of damages based on a judgment by Honourable MURASI J.

The operative part of the judgment which dismissed the applicant’s appeal reads as follows:

“1.	The appeal being without merit is accordingly dismissed.

2.	The decision of the Negotiating Committee setting aside the finding of the Mashonaland Local Joint Committee thus finding the respondent not guilty and making an order for his reinstatement without loss of salary and benefits with effect from date of dismissal, be and is hereby upheld.

3.	That each party bears its own costs.”

The applicant considers the option of reinstatement to be untenable and made an offer of damages in lieu of reinstatement which was rejected by the respondent.

An offer of six months’ back pay and cash in lieu of reinstatement amounting to$1 826-24 was made by the applicant.

The respondent’s counter claims initially amounted to $11 524-00 being fourteen months back pay, cash in lieu of reinstatement and notice period of three months.

The respondent was dismissed from employment effectively from 21 March 2013. By his own admission he got employment at what he calls, “the applicant’s franchise butchery” in June 2014 and worked there till March 2016. He claims to have been paid only $100-00 per month yet the applicant had been paying him $281-00.

The basis for rejecting the applicant’s offer is submitted to be that it only consisted of back pay only and damages in lieu of reinstatement were not included. The respondent wants this court to quantify damages in lieu of reinstatement, over and above the back pay of six months offered.

The claim by the respondent placed before me is set out as follows:

Back pay before the alternative employment

April 2013 to May 2014 at $281-00 per month x 14 months	=	$ 3 934-00

Difference lost whilst employed by franchise butchery

June 2014 to March 2016 being $181-00 x 21			=	$ 3 801-00

Outstanding salary from April 2016 to August 2016

At $281-00 per month						=	$ 1 405-00

Cash in lieu of leave for 75 days					=	$    587-00

Cash in lieu of three months’ notice pay				=	$    843-00

Damages in lieu of reinstatement for twenty-four months

At $281-00 per month						=	$  6 744-00

Total									=	$17 314-00

It is the applicant’s case that the respondent had a duty to mitigate his loss and that in the absence of evidence to show any such mitigation, and given that the applicant then did get alternative employment within a year, then the offer of six months damages, should be awarded as damages.

The issues for my determination seem to be:

The propriety of distinguishing between back pay and damages.

Mitigation of loss.

Relationship between the applicant and the alleged franchise butchery.

Quantum due to the respondent.

I deal with each issue in turn below:

Propriety of distinguishing between back pay and damages

It appears to me that the respondent has taken a misguided approach which flies in the face of case authorities.

In the case of Leopard Rock Motel v Hilary Van Beek SC 6-2000 McNALLY JA stated:

“It seems to me that ‘back pay’ and ‘damages’ are indeed different concepts but only in the sense that ‘damages’ is a wider concept. It will normally include back pay …”

In Madhatter Mininng Company  v Tapfuma S 51-14 clarified this further by stating:

“What is eminently clear from this analysis is that damages in lieu of reinstatement become due and are to be reckoned from the date of an employee’s wrongful dismissal. Further, that in relation to the period from and during which the damages are to be assessed, no distinction is made between the salary arrears and benefits on the one hand and damages proper on the other. All must be assessed within the same period albeit varying time periods and considerations peculiar to the assessment in question may apply.”

The rationale for this is that separating the two would thus run counter to the authorities which state that an employee is obliged to mitigate his loss by looking for a job from the date of unlawful dismissal. (See for instance, Chiriseri v Plan International SC 56-2002).

There is therefore no legal basis on which the respondent wants this court to assess separately, the claim for back pay and that of damages in lieu of reinstatement.

The position is otherwise set out in Leopard Rock Hotel Company (Pvt) Ltd v Van Beek thus:

“Perhaps more correctly, one should say the damages will be assessed by reference to back pay lost. But where the back pay will be limited to a period from the date of wrongful dismissal to a date by which she could, with reasonable diligence, have obtained alternative employment.”

This takes me to the next issue, mitigation of loss.

Mitigation of Loss

The case of Ambali v Bata Shoe Company Limited 1999 (1) ZLR 417 (SC) places a duty on a dismissed employee who believes to have been unjustly dismissed, to look for alternative employment. He is not entitled to sit around and do nothing and if he does not, his damages will be reduced.

The respondent when pressed at the hearing to adduce evidence of his efforts to get alternative employment from March 2013 to May 2014 indicated he had no further submissions save the fact that he got alternative employment in June 2014.

This court was left with a void in evidence to dispel that the respondent did not just sit around, doing nothing.

My conclusion, as urged by the respondent, is that for over a year, the respondent did nothing to mitigate his loss.

Relationship between the applicant and the “franchise butchery”

The respondent alleges that the franchise butchery which subsequently employed him from about June 2014 to March 2016 was in fact the appellant’s butchery and it was a form of reinstatement.

This was refuted by the applicant whose Miss Nyathi stated that the alleged franchise butchery is a separate legal persona which benefits from the supply of goods on credit from the applicant. It was argued further that by acknowledging that he was employed by the franchise butchery, the respondent is aware he was not employed by the applicant.

As no evidence was led linking the applicant to the franchise butchery, I conclude that the respondent was effectively employed by a different legal persona with effect from June 2014 to March 2016.

Quantum Due to the Respondent

It has been held that to quantify without leading any evidence is to err at law and that this court cannot simply pluck a figure from nowhere. The respondent has not given me any evidence to work with. If I grant the respondent’s claim I would be doing what the Supreme Court cautioned should not be done in Nyaguse v Mkwasine SC 34-2000, that is, plucking a figure from nowhere.

As the respondent did not look for alternative employment, his damages will be reduced. See Ambali supra.

I have no knowledge of the respondent’s qualifications and experience, the jobs he applied for and the responses he got. It was not argued that this information is available somewhere and can be adduced before an appropriate tribunal. It was in fact submitted that such information is unavailable beyond what was submitted.

In the circumstances I have no basis to increase the respondent’s damages, inclusive of back pay beyond the six months’ salary offered by the applicant.

The claims relating to the franchise butchery and the employment contract it held with the applicant are not the applicant’s responsibility. Accordingly I dismiss the claim for $3 801-00 being difference in salary received. Further also for the reason that this falls outside the period of damages awarded.

Equally dismissed for the same reasons is the claim for outstanding salary from April 2016 to August 2016, the claim for cash in lieu of leave and notice pay.

As explained above the damages in lieu of reinstatement have been assessed concurrently with back pay and awarded only for the six months period.

Accordingly this application succeeds.

The applicant is ordered to pay, as offered, the respondent the following:

Damages in lieu of reinstatement for six months at $281-00 per month

=	$ 1 686-00

Cash in lieu of leave for 10.98 days			=	$   140-25

Total							=	$ 1 826-25

Coghlan, Welsh & Guest, applicant’s legal practitioners