Savie Munoriarwa v Bindura Rural District Council (BRDC) & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H//2025
HARARE, 07 NOVEMBER, 2024 AND
28 FEBRUARY 2025
CASE NO LC/H/620/25
JUDGMENT NO. LCH//
CASE NO LC/H/620/24
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H//2025

HARARE, 07 NOVEMBER, 2024 AND

28 FEBRUARY 2025                              	                        CASE NO LC/H/620/25

SAVIE MUNORIARWA						APPLICANT

BINDURA RURAL DISTRICT COUNCIL (BRDC)		1ST RESPONDENT

CHAIRMAN: DISCIPLINARY COMMITTEE BRDC		2ND RESPONDENT

Before the Honourable G. Musariri, Judge:

For Applicant		- L. Madhuku, Attorney

For Respondents		- Z. Kajokoto, Attorney

MUSARIRI, J:

Applicant applied to this Court for quantification of damages for loss of employment. The application was made in terms of the Court’s judgment issued on 25 March 2022 which inter alia ordered that;

“2(b) 2nd Respondent (BRDC) shall pay Applicant damages in lieu of reinstatement in an amount either agreed by the parties or assessed by this Court.”

Respondents opposed the application.

Applicant’s founding affidavit set forth the basis of her claim thus;

“6. This is an application for quantification. The 1st respondent has opted for damages instead of reinstatement.

7. I am advised that I must be placed in a position where I am fully compensated for the loss of my job, at the whims of the 1st respondent.

8. At my age there is no prospect of a new job. My retirement is 65 years following the position set out by the Government of Zimbabwe, as pronounced by the President of Zimbabwe.

9. Further I hold a PhD in strategic management in Local Government studies and given the extent to which the 1st respondent unjustifiably tarnished my image, I will not be able to get an employment position in the local authorities in Zimbabwe.

10. The basis of my quantification is that I must be paid all my salary and benefits up to my retirement in August 2030. The length of period for my calculations is nine years five months from my suspension in March 2021.

11. I am making my claim in United States Dollars but the applicant may pay at the interbank rate applicable at the time of payment save for the items indicated ‘strictly USD.’

15. Accordingly I must be paid the following amounts…

19. The overall total therefore is US$2, 922, 647.00.”

The 1st respondent’s opposing affidavit countered as follows;

“6. Ad para7

I wish to put it on record that the 1st respondent by opting for damages did not make a capricious decision. As already stated a resolution was made to that effect. The relationship of the parties is no longer tenable.

It is not disputed that the applicant should be awarded damages in lieu of reinstatement but I contend that the applicant is only entitled to damages that are equivalent to 6 months’ net salary which damages have already been paid.

7. Ad para 8

This is denied. The applicant’s retirement age is 60 years as opposed to 65 years. Further to that the applicant is not being candid with the court. Her age cannot at all be a bar for her to secure alternative employment. In fact it is an added advantage as it will reflect that she has immense work experience…

I will aver that the applicant is a trustee for Zimbabwe Peace Build Trust… I will also state that she is also employed at Zimbabwe Ezekiel Guti University as a lecturer. Further to that she is also a lecturer at Christ College. It is clear she mitigated her loss as required by the law.

13. Ad para 15.2

Denied- There is no basis why applicant should be awarded two vehicles or any vehicle at all… I will further highlight that an interpretation of the applicant’s contract reveals that she was entitled to be given a vehicle after using it for 5 years, provided a new vehicle would be purchased to replace the one which would be given to her. I contend that during her tenure there was no vehicle which was purchased to replace the one she was using, as such she cannot be given a vehicle. To put clearly the applicant as the Chief Executive Officer had an obligation to purchase the vehicle, however she did not do so.

I will further state that the vehicle benefit is a once off benefit. The contract did not state that the applicant is entitled to a vehicle after every five years.”

Analysis

The 1st issue arising from the parties’ positions is the period over which the damages should be calculated. Is it 9 years as claimed by applicant or 6 months as countered by respondents? The Court is guided by the dicta in the case of;

Ambali  v Bata   1999(1) ZLR 417(S)

Per McNally JA

“It is important that this court should make it clear, once and for all, that an employee who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit around and do nothing. He must look for alternative employment. If he does not, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have expected to find alternative employment.”

Applicant’s argument that she is entitled to payment up to retirement is clearly untenable in light of the Ambali case. Applicant placed herself in a bind as she did not base her claim on the correct law.  However her situation is saved by respondent’s admission that she is entitled to 6 months salaries as damages on the basis that that is the period within which she could reasonably find alternative employment. Respondent’s argument is bolstered by their affidavit which stated that applicant found alternative employment as a trustee and a lecturer at two institutions thereby mitigating her damages.  Applicant did not rebut the said mitigation.

The next issue concerns the correct salary applicable.  Applicant used the rate of US$2 500 per month. According to the employment contract dated 21st October 2016 US$1 900.  Applicant was dismissed on 9 March 2021. This means that during the currency of her employment her salary converted to Zimbabwe Dollars (ZWL) by virtue of the provisions of section 4(1)(d) of Statutory Instrument 33 of 2019. That means at the time of her dismissal she was earning Z$1 900.

That is the applicable salary rate. Her ipsi dixit that she is entitled to claim in US Dollars has no legal basis. Further and in any event the respondents averred on oath that they paid her the 6 months’ salaries.  Her entitlement to a motor vehicle was set out in her employment contract thus

“To be given a vehicle after using it for five years provided a new vehicle would be purchased to replace the one which would be given to you”

This clumsily worded term simply means that upon purchase of a new vehicle for her the applicant would be given the one she was using.  In other words there was no automatic entitlement to a vehicle every five years as argued by applicant. Again respondents stated on oath that they never acquired a new vehicle for her post and therefore the term could not be relied on by her to claim vehicles over her tenure with them.  Thy say this explains why she never claimed a vehicle during her tenure. However they made an ex gratia offer for her to take ownership of the vehicle that she was using which is in her possession.

The employment contract under clause 9 provided

“9. Accommodation

Council will provide free water, Zesa and Tel One

Free accommodation

Caretaker and Security Guard

Cellphone line + handset,

50 litres fuel per week

1500 km mileage (own car) upon exhaustion of mileage, a payment of $0.60 can be made against a claim.”

These are not part of taxable income but allowances tied to actual service. They are only claimable where the employee has actually worked without being paid. The same applies to the claims airtime, telephone, electricity, water, cellphone and handset, laptop, pension, medical aid school fees, food hamper and vehicle maintenance. The outstanding benefit is he one provided for as follows,

“Gratuity-

The CEO to be given one month’s salary for every year completed.

To be given a low density or a commercial stand within BRDC’s area of jurisdiction.”

According to respondents the cash gratuity was in the sum of ZWL$3, 726, 153.49. That was not contested by applicant. As regards the stand respondents stated;

“24. … Applicant cannot be given the vehicle she is claiming as no other vehicle was purchased to replace the one in question. It is further disputed that a residential stand in the low density area around the Respondent’s area costs US$21 000. The figure is inflated. The correct amount is US$4 000.00.”

It is clear that the stand “benefit” is outstanding. Applicant has not provided a credible basis for her valuation of US$21 000. The Court is prepared to go by Respondents’ figure, US$4 000 because they are the owners who should know the value of their property.

Conclusion

It is concluded that applicant failed to substantiate her claims save for a motor vehicle and the gratuity benefit of a stand.

Wherefore it is ordered that,

The application for quantification of damages be and is hereby partially granted;

(a) 1st respondent shall transfer ownership of the motor vehicle registration no. AAE 7798 to applicant,

(b) 1st respondent shall transfer/cede ownership of a low density stand or pay US$4, 000.00 to applicant; and

3. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E