Musa Mukumbuzi v Develop It Zimbabwe T/A Maranatha Junior School

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/62/2021
HARARE, 29 MARCH 2021 &
CASE NO LC/H/APP/355/19
4 JUNE 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/62/2021

HARARE,   29 MARCH 2021 &			   CASE NO LC/H/APP/355/19

4  JUNE 2021

In the matter between:-

MUSA MUKUMBUZI				   APPLICANT

And

DEVELOP IT ZIMBABWE T/A			   RESPONDENT

MARANATHA JUNIOR SCHOOL

Before the Honourable Manyangadze  J

For the Applicant			Mr T. Deme (Legal Practitioner)

For the Respondent			Mr I. Mataka (Legal Practitioner)

MANYANGADZE, J:

This is an application for quantification of damages for loss of employment. The application arises from a judgment handed down by MAXWELL J on 2 December 2016, the operative part of which reads, in paragraph 4, as follows:

“Respondent be and is hereby ordered to reinstate Appellant without loss of salary and benefit. If reinstatement is not an option, Respondent is to pay damages in lieu of reinstatement the quantum of which is to be agreed upon between the parties. If the parties fail to agree on the quantum either party can approach the Court for quantification.”

The applicant was employed by the respondent as a teacher. She was dismissed from employment on March 23, 2016, after she was found guilty of misconduct. She noted an appeal with this court and also filed an application for review, in which she sought the setting aside of her dismissal. In the judgment referred to, MAXWELL J upheld the appeal, granted the application for review, and ordered the appellant’s reinstatement. This paved the way for the instant application.

The applicant seeks an award of damages quantified as follows, as per her founding affidavit:

“1. Backpay from 23 February 2016 (date of suspension)

to date of the dismissal of Respondent’s application

for rescission of default judgment by court order per

Chivizhe J (23 February 2016 – 06 September 2017)

@ $1 311. 45 x 19 months  						 = $24 917.55

2. Damages in lieu of reinstatement at 36 months

from 07 September 2017 – 06 September 2020

@ $1 311.19 x 36 							= $47 212.2

3. Cash in lieu of leave days

(@ $62.43 x 90 days) 							= $ 5 619.38

Grand Total 								= $77 749.13”

The founding affidavit, and the heads of argument which elaborate it, reflect a fundamentally flawed understanding of the principles governing quantification of damages for wrongful dismissal.

The applicant has thrown in a claim for arrear salaries including amounts allegedly accrued prior to dismissal. She wants these arrear salaries to be paid up to “the date of dismissal of the application for rescission of default judgment.” The record shows that the respondent attempted to have MAXWELL J’s judgment rescinded. Its application for rescission of the judgment was dismissed by CHIVIZHE J on 6 September 2017. This means the applicant wants to be paid arrear salaries going beyond the date of the order of reinstatement, which was 2 December 2016.

Added to the claim for arrear salaries is a claim for damages in lieu of reinstatement covering the period 7 September 2017 to 6 September 2020, a period of 36 months.

In its opposition to the application, the respondent avers that back-pay is a component of damages, and is computed from the date of dismissal to the date of reinstatement. The period claimed by the applicant has no basis in law.  In this regard, he court was referred to the cases of Madyira v Globe and Phoenix Industries (Pvt) Ltd 2002 (1) ZLR 269, Chinhange v Clan Transport SC 268/96, Ambali v Bata Shoe Company Ltd 1999 (1) ZLR417 (S), Gauntlet Security v Leonard 1997 (1) ZLR 583 (S).

The position on damages vis avis back-pay was succinctly explained in the case of Madhatter Mining Company Ltd v Marvellous Tapfuma SC 51/14. The case also clarified the approach to be made in the computation of damages for wrongful dismissal generally. It has become the locus classicus on the whole issue of damages for loss of employment, and resolves many of the disputes that arise.

The Supreme court made it clear that damages in lieu of reinstatement become due and payable from the date of wrongful dismissal. It also clarified that there should be no distinction between salary arrears and damages. These must all be assessed within the same period, GWAUNZA JA (as she then was) stated, at pages 8 – 9 of the cyclostyled judgment:

“An analysis of the authorities referred to suggest to me as follows;

A person is wrongfully dismissed;

He or she successfully petitions the court for reinstatement or where that is no longer possible for any reason, damages in lieu of reinstatement.

Such damages would consist of arrear salaries or wages for the relevant period reckoned from the date of the wrongful dismissal and may also include compensation for any loss to which he was entitled, which he was deprived of as a result of the wrong termination.

What is eminently clear from this analysis is that damages in lieu of reinstatement become due and are 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 periods and considerations peculiar to the assessment in question may apply.”

Nothing can be clearer than this. It is significant to note that the learned judge made this clarification after an analysis of the leading authorities on the subject. These include the cases of Ambali v Bata Shoe Company Limited, Gauntlet Security Industries v Leonard, supra. The judge further emphasized the need for the employee to mitigate his damages by looking for alternative employment, and that the obligation to do so arises immediately after the dismissal complained of.  In this regard, the judge stated, at page 9 of the cyclostyled judgment:

“The authorities are very clear on the point that the employee is legally obliged to mitigate his loss by looking for a job from the date of his dismissal. (See for instance, Madyara vs Globe and Phoenix Industries (Pvt ) Ltd 2002 (2) ZLR 269 (S)).”

Having regard to these principles and the facts of the matter, the Supreme Court reduced the award of damages in lieu of reinstatement that had been granted by the Labour Court from 36 months to 12 months.

In casu, the applicant seeks arrear salaries stretching over a period of 19 months, from February 2016 to September 2017. In addition, she seeks 36 months damages in lieu of reinstatement, giving a total of 55 months. She has also included 3 months cash in lieu of leave. This gives a grand total of the damages claimed of 58 months.

From the authorities referred to, the date from which damages are to be calculated is that of the wrongful dismissal, which in this case is 23 March 2016. The next consideration is how long the applicant was reasonably     expected to secure alternative employment, from that date. It is highly improbable that the applicant, a primary school teacher, with a consistent and diligent search, would go up to September 2020, a period of 4 ½ years, without securing suitable alternative employment. The record shows that only 3 job applications were made by the applicant. That cannot pass for a diligent and consistent search.

The respondent wants the damages to be awarded up to the period of reinstatement, a period of 9 months. The respondent avers that the applicant has not shown any evidence that she is entitled to anything beyond this period. In my view, it seems unlikely that the applicant could fail to find a job as a teacher, in a private or government school, within a period of 12 months. The only reason advanced in the founding affidavit for failure to find alternative employment is “the difficult economic climate which has seen many companies folding.” Even if this factor is taken into account, it does not justify a period of more than 4 years in search of a teaching job.   A period of 12 months appears just and reasonable under the circumstances.

The next and final consideration is the rate of pay to be applied in the computation of the damages payable. The respondent asserts that the applicable salary is $713,43 per month.  The applicant insists on a salary of $1311,45 per month.

Both parties are using the same payslip, which reflects the salary the applicant earned at the time she was dismissed.  The applicant is basing her claim on the gross salary.  The respondent is basing its offer on the net salary.  The legal position, it seems, is that damages are calculated based on net salary.  See Madyana vs Globe and Phoenix Industries, supra,@ p. 276 E-F,  that means the figure of $713,43 must be the basis for the computation.  Consequently, damages due and payable will be $713,43 x 12 = $8 561,16.

In the circumstances, it will be ordered that:

The application for quantification of damages in lieu of reinstatement be and is hereby partially granted.

The Respondent pays the Applicant damages in lieu of reinstatement in the total sum of $8 561,16.

Each party bears its own costs.

Thoughts Deme Attorneys at Law, Applicant’s Legal Practitioners

Messrs Chambati, Mataka & Makonese Attorneys, Respondent’s Legal Practitioners