Raven Mining (Pvt) Ltd v Kumbirai Blessing Kamvura

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/146/2014
HARARE, 10 & 14 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/146/2014

HARARE, 10 & 14 MARCH 2014			    CASE NO. LC/H/991/13

In the matter between:-

RAVEN MINING (PVT) LTD					Appellant

And

KUMBIRAI BLESSING KAMVURA				Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. A.T. Muza (Legal Practitioner)

For Respondent		Mr. P. Mabundu (Legal Practitioner)

MAXWELL J:

Respondent who had been employed by Appellant was dismissed from employment and successfully challenged his dismissal before an arbitrator.  The arbitrator ordered his reinstatement without loss of salary and benefits with effect from the date of dismissal. Respondent alleges that he reported for duty but was denied entrance into Appellant’s premises and was told not to report for duty.  He then approached the arbitrator for quantification of damages.  The arbitrator quantified the damages as;

“Back pay (13 months x $600.00)		=	$7 800.00

Damages of 15 months x $ 600.00	=	$9 000.00

Total amount due				=   $16 800.00”

(page 11 of record)

The award dated 17 October 2013 ordered Appellant to pay the amount due by on or before 30 October 2013.  On 4 December 2013 Appellant noted an appeal against the award.  The grounds of appeal are;

The Arbitrator erred grossly in law and misdirected himself when he awarded damages in lieu of reinstatement to the Respondent in the sum of $16 800,00. By awarding the said damages, the Arbitrator disregarded the well established principle in our law that damages must be properly proved by the party seeking the same.

In the absence of the said evidence, there was no factual or legal basis for the Arbitrator to award the Respondent damages in lieu of reinstatement in the sum of US$16 800,00.

The Arbitrator erred when he awarded damages in lieu of reinstatement yet the Appellant never refused to reinstate the Respondent.  Accordingly the award for damages is incorrect at law since it can only be made were reinstatement has been refused by the employer.

The Arbitrator erred when he awarded damages in lieu of reinstatement yet the Respondent had repudiated his own contract of employment by not making himself available for work as he is obligated to do by the law.

Appellant prayed for the setting aside of the award and its substitution with an order dismissing the claim for quantification with costs on the higher scale of attorney and client.  In response Respondent stated that there was no gross misdirection as the Arbitrator properly assessed the damages.  Respondent also stated that he had been denied entrance into Appellant’s premises and was told not to report for duty.  Respondent further stated that it was proper for the Arbitrator to quantify the damages as Appellant did not reinstate him.  He further argues that if Appellant had reinstated him he should be called for a disciplinary hearing for not reporting for duty.  Respondent prayed for the appeal to be dismissed with costs.

With regards to the first ground of appeal it is not correct that the award of US$16 800 is for damages in lieu of reinstatement.  The Arbitrator clearly indicated on page 4 of the award that that amount is made up of $7 800 back pay and $9 000 damages.  The Arbitrator explained why he used the figure $600 as salary.

Respondent had been claiming $800.00.  On page 3 of the award the Arbitrator states;

“I also accept the Respondent’s submission that the Applicant should produce proof that he was earning $800.00.  The Respondent produced proof of  a pay slip showing that the Applicant was earning $600.00.  I will use $600.00 for purposes of this quantification.”

The Arbitrator clearly used the evidence placed before him by the parties, and he clearly outlined how he arrived at the total amount awarded.  I find no merit in the first ground of appeal.

In the second ground of appeal Appellant alleges that he never refused to reinstate the Respondent and therefore there should not have been an award of damages in lieu of reinstatement.  Respondent stated that he was turned away when he reported for duty after the award.  The Arbitrator seems to have accepted Respondent’s version.  Whether or not Appellant never refused to reinstate the Respondent is a factual issue and the Arbitrator’s finding on that aspect cannot be appealed against unless it can be demonstrated that it was so unreasonable that no sensible person applying his mind to the facts would have arrived at such a conclusion.  In casu I am not convinced that the Arbitrator misdirected himself.  In any event, as stated in the case of Isaac Mukwinya v Clan Transport (Pvt) Ltd SC 47/2001 Appellant had a positive duty to reinstate Respondent.  The onus was on it to make the first move.  There is no indication that Respondent was invited to report for work pursuant to the award.  This ground of appeal therefore also fails.

The third ground of appeal is linked to the second.  Appellant alleges that Respondent repudiated the contract of employment by not making himself available for work as he is obligated to do by the law.  I have already pointed out that Appellant had the duty to make the first move.  The arbitrator was satisfied that Appellant was not willing to reinstate Respondent and therefore the award of damages in lieu of reinstatement was appropriate. Consequently the appeal fails and is dismissed with costs.

Mawere and Sibanda, Appellant’s legal practitioners

Thondlanga and Associates, Respondent’s legal practitioners