Ronnie Mahlanganise v Varichem Pharmaceuticals

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/223/16
HELD AT HARARE 2 MARCH 2016
CASE NO
JUDGMENT NO LC/H/223/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/223/16

HELD AT HARARE 2 MARCH 2016				CASE NO LC/H/APP/1498/15

& 22 APRIL 2016

In the matter between:

RONNIE MAHLANGANISE				Applicant

And

VARICHEM PHARMACEUTICALS			Respondent

Before The Honourable F C Maxwell, Judge

For Applicant			Mr G Pendei (Legal Practitioner)

For Respondent		Mr V Muza (Legal Practitioner)

MAXWELL, J:

This is an application for quantification of damages awarded to the applicant.  Applicant had been dismissed from employment on 11 April 2014 following a disciplinary hearing on misconduct.  After the dismissal applicant appealed to the Appeals Officer and the appeal was dismissed.  Applicant further appealed to the National Employment Council for the Chemicals and Fertilizers Manufacturing Industry (NEC).  The NEC Appeals Committee upheld the appeal and ordered respondent to reinstate applicant without loss of wages and benefits from the date of dismissal.  In the alternative parties were to negotiate damages in lieu of reinstatement.  In the event of failure to reach agreement, the parties were to approach the NEC Appeals Committee for quantification.  Respondent had appealed against the NEC Appeals Committee decision which appeal was dismissed by this court on 11 November 2015.

Parties negotiated and reached agreement on the following

Overtime $202.81

Cash in lieu of leave $518.12

Gratuity $662.00

The applicant is consequently awarded the same.  Parties reached partial agreement

on the issue of back pay and notice pay.  They agreed that applicant was entitled to

21 months back pay and

3 months notice

They however did not agree on the basic salary.  Applicant is claiming a salary of

$544.03 per months as per the applicable collective bargaining agreement.  Respondent is offering $525.64 on the basis that on 11 February 2013 an agreement was entered into between the parties for a 20% reduction of salary.  In addition to the above, applicant is also claiming housing allowance, service allowance, school fees allowance and compensation for loss of employment.

Respondent disputes applicant’s entitlement to the allowances claimed.  Mr Bore from the respondent stated that applicant was not entitled to housing and service allowances they are only given to employees who are giving service to the employer.  He further disputed applicant’s entitlement to school fees allowance on the basis that the allowance was discontinued from end of 2013.  On the issue of the housing and service allowances, Mr Bore’s position is without legal basis.  An employee, in addition to the amount of salary or wages he would have earned save for the premature termination of his contract by the employer, is also to be compensated for the loss of any benefit to which he was contractually entitled to and of which he was deprived in consequence of the breach.  See Guantlet Security Services v Rodgers Leonard 1997 (1) ZLR 583.  It is therefore immaterial that no service was given to the employer at the time.  Respondent did not dispute that these allowances are according to the Collective Bargaining Agreement.  Applicant is therefore entitled to the housing and service allowances.

With regards to the school fees allowance respondent argued that it was discontinued in 2013.  No proof of such discontinuance was tendered.  It is trite that he who asserts must prove.  See Astra Industries Ltd v Peter Chamburuka SC 27/12, Nyahondo v Hokonya 1997 (2) ZLR 457.

Applicant’s payslip for January 2013 confirms that the school fees allowance was being paid at the time.  Respondent did not produce any evidence to rebut applicant’s claim.  At the hearing of the matter a payslip for one Learnmore Matowe was produced.  The payslip was for May 2014. It had no school fees allowance.  The court requested for a payslip for Learnmore Matowe for previous months.  None was available.  It is therefore not possible to conclude that Learnmore Matowe had been getting school fees allowance previously.  I am not convinced by respondent’s argument that the allowance was discontinued in 2013.  Nothing precluded respondent from proving that discontinuance.  I therefore award applicant the school fees allowance.

Basic Salary

Respondent relied on the minutes of the Works Council meeting of 25 April 2013 for the argument that applicant agreed to a 20% reduction in salary.  The court notes that the minutes indicate that that agreement was to be effective for 12 months and the agreement had been reached on 7 March 2013.  It therefore follows that the 20% reduction would be applicable from March 2013 to end of February 2014.  By the time applicant was dismissed in April 2014 the agreement had expired.  I therefore find that applicant is entitled to a basic salary of $544.03. Accordingly the back pay and cash in lieu of notice is awarded as claimed.

Damages in lieu of reinstatement

Applicant is claiming 36 months as damages in lieu of reinstatement.  He claims that in the prevailing economic environment it is difficult for a person in applicant’s position to secure employment within a shorter period.  Applicant produced letters he wrote seeking employment in various organisations.  The letters are for the period 3 May 2014 to 23 February 2016.  Respondent objected to the production of the letters on the basis that they should have been attached to the affidavit at the inception of the matter.  The court overruled the objection on the basis that when the application was filed, applicant was represented by a trade union.

Mr Bore for the respondent claimed in oral evidence that applicant had been offered reinstatement but he turned down the offer.  When asked specific details he indicated that the offer was made when parties initially appeared for the quantification hearing i.e. 2 March 2016.  Mr Bore further confirmed that after this court upheld the NEC determination applicant had sought respondent’s position with regards to the judgment.  He indicated that respondent had replied through legal practitioners indicating that applicant would be reinstated if he so wished.  Mr Bore was asked to avail the letter to the court.  What was produced to the court were two email letters.  One was sent from respondent’s Patricia Kamanjira to respondent’s counsel on 7 January 2016.  It is obviously an offer of payment of damages.  No reinstatement is mentioned.  The other letter was sent by Mr Bore to counsel for respondent on 9 March 2016.  It refers to the company position on the matter and again outlines the damages being offered.  I find that respondent did not prove that applicant turned down an offer of reinstatement.

I am satisfied that on a balance of probability applicant proved that he made efforts to secure alternative employment.  Counsel for respondent submitted that there is a 90% unemployment rate in this country and jobs are hard to come by.  He urged the court to follow the ruling in Johnson Muperekwa v Varichem Pharmaceuticals (Pvt) Ltd LC/H/35/16 in which 6 months were awarded as damages in lieu of reinstatement.  I find that case distinguishable on the basis that in that case the court was not satisfied with the reason given for not getting alternative employment.  Applicant in that case had stated that the former employer had refused to give him references.  The court was not satisfied that applicant had made serious efforts to mitigate his loss.

In the case of Posts & Telecommunications Corporation v P G Swabata SC 42/03 MALABA JA  (as he then was) stated

“The obligation on the employee is to look for and take alternative employment if available.  The onus is on the employer to show that the employee did not look for alternative employment or that he did not take up a good job when it was offered to him.  Should there be no evidence to refute the employee’s evidence that he looked for employment without success he would be entitled to be awarded the amount of salary and benefits he would have earned from the date of wrongful dismissal to the date of order for reinstatement less what he may have earned in temporary or intermittent employment.”

In Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (10 ZLR 571 (S) it was held that if the employee had remained jobless, equity demanded that the employer be the loser because he would have been the one in the wrong.

It is, therefore, only where there is evidence that the employee did not look for alternative employment that the damages would be calculated from the date of wrongful dismissal to the date he would reasonably have been expected to find alternative employment.”

Respondent has not rebutted applicant’s assertion that he looked for employment but did not secure any.  As a matter of fact counsel for respondent’s submissions on the unemployment rate supports applicant.  In the case of Kuda Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine SC 63/02 appellant was awarded three years’ net salary as damages in lieu of reinstatement in addition to back pay and allowances.  I find no basis for denying applicant’s claim for 36 months damages in lieu of reinstatement.  I accordingly award then as claimed.

In the circumstances I make the following order;

Respondent be and is hereby ordered to pay applicant the following;

Salary back pay 21 months x $544.03		$11 424.63

Overtime $202.81

Cash in lieu of leave $518.12

Gratuity $662.00

Housing allowance $1 680.00

Service allowance $646.72

School fees allowance $1 075.00

Damages for loss employment $19 585.08

Cash in lieu of notice $1 632.09 (3 x 544.03)

Grand total $37 426.45

The total amount of $37 426.45 shall be paid together with interest at the prescribed rate calculated with effect from the date of this order to the date of payment in full.

Manyangadze Law Chambers, applicant’s legal practitioners

Muza & Nyapadi Legal Practitioners, respondent’s legal practitioners