Rainshow Nyahwema v National Railways of Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/231/14
HELD AT HARARE ON 27th MARCH, 2014
CASE NO. LC/H/73/12
AND 11th APRIL, 2014
JUDGMENT NO. LC/H/231/14
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO.LC/H/231/14

HELD AT HARARE ON 27th MARCH, 2014   CASE NO. LC/H/73/12

AND 11th APRIL, 2014

In the matter between:-

RAINSHOW NYAHWEMA 						Applicant

And

NATIONAL RAILWAYS OF ZIMBABWE				Respondent

Before the Honourable G. Mhuri, Judge

Applicant	: 	  In Person

For Respondent: A. Muchadehama (Legal Practitioner)

MHURI J.:

On the 31st May, 2013 this court issued a judgment whose order gave rise to this application for quantification of damages.

The order reads:-

“In the result, the appeal must succeed.

The Appellant is to be reinstated into his former position.

If reinstatement is no longer tenable the Appellant is to be paid damages for premature loss of his job.”

It is clear from this order that retrospectivity was not intended.

See:-	CHEGUTU MUNICIPALITY V MANYARA 1996 (1) ZLR 262 S at 268 A.

As such no backpay or benefits are payable to the Applicant.

By a letter dated the 30th August, 2013, Respondent made its position known to Applicant, that reinstatement was not tenable and opted to pay damages in lieu.

The arrear salaries to be paid therefore are to be calculated from the date of reinstatement 31st May, 2013 to the date of option to pay damages 30th August, 2013 (3 months).

It is to be noted that for some reason, Respondent opted to pay Applicant arrear salaries and benefits calculated from the date of dismissal 27th June, 2010 to the date of reinstatement 31st May, 2013.

According to a document dated and filed in this court on 4th April, 2014 by Applicant, the amount calculated was as follows:-

Basic pay					17 031,33

Annual bonus					 1 283,99

Pay in lieu of Leave Service	   199,14

Total before Tax				18 514,46

Tax 							 3 254,00

Net due						15 260,00

Amount paid					11 260,00

Balance						 4 000,00

Applicant is now claiming the balance of $4 000,00, 1 year’s salary as damages in lieu of reinstatement and 3 months cash in lieu of notice.

I take it that, as per this document, Applicant has now abandoned his earlier claim of 3 years salary as damages in lieu of reinstatement.

It was Respondent’s position that Respondent incorrectly interpreted the court’s order and offered to pay arrear salaries and benefits.  In view of that, it was submitted, Applicant should reimburse the over payment if it is found that the damages awarded are far below the amount so far paid to Applicant.  Applicant indicated that he was not averse to the Respondent’s claim if it is according to law.

It was Respondent’s submission that if there is no backpay, a reasonable period is 12 months within which, with due diligence he would have found alternative employment.  It also offered 3 months salary in lieu of notice as it had not been included in the payment.

This is the offer Applicant is now demanding that Respondent pays instead of the 3 years he had initially demanded.

As pointed out earlier, Applicant was not entitled to arrear salaries and benefits as per the order.  In the result, I will grant applicant what Respondent has offered, vis 1 year salary and 3 months salary in lieu of notice.  The calculation is as follows;

$471,25 x 12  	=	$5 655,00

$471,25 x  3		=	$1 413,75

Total			=	$7 068,75

Less the requisite statutory deductions which Respondent is to calculate.

Since Applicant has already been paid a total of $11 260,00, Respondent does not owe Applicant any money.  In actual fact, it is the Applicant who owes Respondent the amount overpaid.  It will be up to Respondent to recover this over payment from Applicant as it is tantamount to Applicant being unjustly enriched.

Mbidzo Muchadehama and Makoni–Respondent’s Legal Practitioner