Priscilla Togarepi v Beach Consultancy Company t/a Aviation Ground Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/342/14
HELD AT HARARE 13TH MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/342/14

HELD AT HARARE 13TH MAY 2014			CASE NO LC/H/34/13

& 20TH JUNE 2014

In the matter between:-

PRISCILLA TOGAREPI					Applicant

And

BEACH CONSULTANCY COMPANY			Respondent

t/a AVIATION GROUND SERVICES

Before The Honourable E Muchawa, Judge

For Applicant		Lewis T Musekiwa (Legal Practitioner)

For Respondent		Alec Muchadehama (Legal Practitioner)

MUCHAWA, J:

This is an application for quantification of damages following disagreement on the quantum of damages between the parties.

The respondent was ordered by this Court to reinstate the applicant into her position as a shift supervisor, without loss of salary and benefits.  In the event that reinstatement was no longer tenable, applicant was to be paid damages in lieu of reinstatement and for the premature loss of employment.

Applicant’s claim comprises of back pay for 13 months from September 2012 to September 2013 totalling $40 444.09 made up of a basic salary and benefits and allowances that include fuel, housing, airtime voucher, meal allowance, medical cover, leave days, pension gratuity, danger allowance, shift allowance and a bonus.

In addition to the above, appellant is claiming damages for a period of three years from October 2013 to October 2016.  Included therein are all the allowances listed above, the basic salary, a long service award for ten years of service, a severance package and cash in lieu of notice of termination for three months.  The total amount in this regard comes to $116 138.30

Applicant’s total claim is therefore $156 582.39.

Respondent opposes this claim as being clearly exaggerated and without legal foundation.  Respondent tenders back pay with the housing allowance, pension gratuity, calculated over thirteen months.  In addition respondent offers cash in lieu of leave totalling $4 612.64 and cash in lieu of notice for three months.  This totals $21 428.92.  For the damages in lieu of reinstatement respondent offers  3 months’ salary.  This comes up to

$2 692.74.  The grand total should be $24 121.66 subject to statutory deductions.

At the start of the hearing applicant’s counsel withdrew the claims for leave days and housing allowance on the pretext that these were pending before a different tribunal.  The danger allowance was said to have been agreed in the Works Council and then unilaterally withheld by the employer.  Applicant was unable to avail the alleged Works Council Agreement.

During submissions before me after respondent’s submissions, applicant’s counsel made the further concession that he is now just claiming the basic salary for the damages in lieu of reinstatement and has abandoned the benefits that were being claimed over a three year period.  This I believe was based on a mistaken understanding of the law.  I say so on the basis of the settled law in Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417(S) at page 417 D

“Where a person has been wrongfully dismissed (rather than wrongfully suspended), from his employment, and seeks damages rather than reinstatement, he is entitled to be awarded the amount of wages or salary he would have earned had his contract not been prematurely terminated.  He may also be compensated for the loss of any benefits to which he was deprived as a result of the wrongful termination”.  Such benefits are contractual and have to be proved.  (My emphasis)

I now proceed to consider each of the claimed items as I am alive to the settled law that the quantification of damages is an issue of evidence.  (See First Mutual Life Ltd v Jackson Muzivi SC 9/07).  This court is not bound by the quantification done by an arbitrator in a different matter involving respondent and one Lucas Magede that applicant made reference to.  The assessment of damages is based on the evidence led to prove applicant’s claims.

Basic Salary

Applicant is claiming a salary of $ 897.58 and submitted a payslip of August 2012 in support of that.  The payslip however shows a basic salary of $690.52.    Respondent has tendered a salary of $897.50.

I therefore find that applicant’s salary for purposes of this quantification, by consent of the parties is $897.50.

Fuel Allowance

Applicant did not submit any evidence of the fuel allowance of 165 litres per month as claimed.  No contract of employment was submitted.

Respondent submitted that this allowance is given to an employee to facilitate his/her attendance at work. It was argued that as appellant was not attending at work she is not entitled to this.

The reasoning in First Mutual Life Ltd v Jackson Muzivi supra regarding how a car benefit or facilitation of movement is for the benefit of the employer, is instructive:

“Once he was suspended the benefit of the use of the car would under normal  circumstances fall away.”

I therefore find that applicant is not entitled to a fuel allowance and dismiss this claim.

Airtime Voucher

Applicant did not provide any proof of this being a contractual benefit.

Respondent submitted that this was an ex gratia payment to employees to cushion them against call expenses whilst at work. It was argued therefore that whilst on suspension and dismissal, applicant was not making any work related calls and is therefore not entitled to these.

I therefore find that there is no legal basis for this claim which is accordingly dismissed.

Meal Allowance

Applicant did not provide any evidence of this being a contractual benefit.

Respondent submitted that there is no such allowance at its work place as meals are provided to employees whilst they are at work.  Meal allowances are said to be given to those who attend work at weekends or do overtime work.

In the premises I find no legal basis to award this to applicant.

Danger and Shift Allowance

Applicant did not provide any evidence of such allowances.

Respondent submitted that there are no such allowances at its workplace and that if paid, a shift allowance would be paid to someone on shift.  As applicant was not at work she would not be entitled to this.

In the circumstances I find that applicant is not entitled to such allowances.

Medical Aid Cover

Applicant is claiming medical Aid Cover.   I agree with respondent that applicant would have to prove medical expenses incurred after dismissal in order to prove a direct entitlement to medical aid as claimed.  No such evidence was put before the court.  I find that applicant has no legal basis to claim this and accordingly dismiss the claim (See First Mutual Life Ltd v Jackson Muzivi supra)

Pension Gratuity

Applicant claims pension gratuity at the rate of $53.85 per month.  Respondent has offered this over a thirteen month back pay period based on the relevant regulations (S.I. 55 of 1992)

I find that  the pension gratuity at the agreed rate of $53.85 per month is a duly proved entitlement.

Bonus

Applicant is claiming a thirteenth cheque as a bonus for the number of years over which damages will be awarded.  I was not however favoured with applicant’s contract to establish this entitlement.

Respondent submitted that applicant has no entitlement to any bonus.  In First Mutal Life Ltd v Muzivi, supra, it was stated that payment of an annual bonus is generally discretionary on the part of the employer.  It could not be said that an employee would be awarded a bonus under all circumstances.

In the absence of proof of this entitlement to a bonus, I find that there is no legal basis for this and dismiss the claim.

Long Service Award

This claim was withdrawn by applicant during the hearing.

Termination Notice, Severance Package, Relocation Allowance

Applicant has claimed three months’ salary as cash in lieu of notice, a relocation allowance of six months’ salary and a severance package of twelve months’ salary.

No clear submissions were made in support of these claims before me, even after seeking clarification from applicant.

Respondent opposed the claims as having no legal basis.

I do not believe that such claims over and above the damages in lieu of reinstatement are legally competent.  The case of Gauntlet Security Services (Pvt) Ltd Ltd v Leonard 1997 (1) SZLR 583 lays out that the  award of damages is the amount of wages or salary an employee would have earned save for the premature termination of his contract.  This may also include compensation for loss of any benefit he was contractually entitled to and which he was deprived of.

I therefore dismiss the above claims in the circumstances.  In any event applicant withdrew all other claims save for the salary.

Period for which damages are payable

Applicant is claiming back pay for a period of thirteen months plus damages in lieu of reinstatement for a three year period.  Cumulatively applicant’s claim is therefore for forty nine months.

The basis of the claim for back pay is read from the order which reads;

“1. 	 That the appellant be reinstated into her position with no loss of salary and benefits from the date of dismissal.

2.	Should reinstatement no longer be possible, appellant is to be paid damages in lieu of reinstatement and for the premature loss of employment.”

The thirty six months claim is premised on the fact that there are only two companies in the country that can employ the applicant, being the respondent and National Handling Services.  It was also argued that respondent had awarded damages for two years to another employee in 2009 and the economic situation was much worse now.

On the other hand respondent is limiting its offer to the thirteen months back pay plus a further three months for damages.  It is argued that applicant is highly qualified and experienced.  She is said to hold 7 “O” level passes, a certificate in Travel and Tourism, a certificate in Export Procedures and Customs Clearance, a Diploma in Travel and Tourism – AITA/UFTAA, a Diploma in Public Relations.  Applicant is also currently doing a BSC Psychology Degree with the Women’s University.

In further sub missions respondent argues that the duty to mitigate losses arose on applicant immediately after termination of her employment on 28 August 2012.

In her own evidence applicant admitted to have been seeking employment from various organisations but of failing to secure such employment due to the prevailing economic situation and the need for a referral letter from the  employer.  Applicant  also indicated that though she holds a diploma in public relations she had no experience in this field as well as in travel and tourism.  No copies of the applications were tendered to the court as applicant claimed not to have kept copies.  Several companies including Kenya Airways were named as places were applications were sent.

It was established too that applicant is thirty seven years old and had not tried any small scale entreprenuarialship.

Both parties referred me to several authorities in respect to mitigation of damages.  In Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 it is settled that an employee must mitigate his loss.  He must look for and accept any reasonable offer or alternative employment.  He cannot just do nothing.

From applicant’s oral evidence, I am satisfied that she did seek alternative employment.  I am however not in agreement that she can only be employed by two employers given her range of qualifications.

In Nyaguse v Mkwasine SC 34/2000 MCNALLY J.A. stated that the onus is on the employer to show that the employee has or should have earned an income from some other source.

I am satisfied that respondent has discharged this onus.  It has been shown that applicant should have broadened her search of alternative employment given her wide range of qualifications or alternatively ventured into a small scale entrepreneurial activity which applicant expressed interest in albeit at a large scale.  It is unreasonable in the circumstances to only expect to be employed by two employers in the country.

In the circumstances I find that a reasonable period within which applicant would get alternative employment is 36 months.

I wish to adopt the approach in Loepard Rock Hotel Company )Pvt) Ltd v Van Beek 2000 (1) ZLR 251 (SC) that back pay and damages are different concepts, only in the sense that damages is a wider concept.  It will normally include back pay.  This is because the duty to mitigate loss started running upon dismissal.  In the circumstances the total claim including the back pay should be calculated over 36 months.

Applicant is therefore entitled to the following:

Salary @ $897.50 x 36 =  32. 310.0

Pension gratuity @ $53.85 x 36 = 1.938.6

Total					$34. 248.6

In the circumstances the following order is made

“That the respondent shall pay to applicant the sum of $34 248.60 as damages in lieu of reinstatement inclusive of back pay.”

Musekiwa & Associates, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners