Shepherd Vazhure v Women's University in Africa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/400/25
HELD AT HARARE 29 JULY 2025 and
CASE NO. LC/H/455/25
20 OCTOBER 2025
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO. LC/H/400/25

HELD AT HARARE 29 JULY 2025 and 20 OCTOBER 2025

CASE NO. LC/H/ 455/25

SHEPHERD VAZHURE	APPLICANT

AND

WOMEN’S UNIVERSITY IN AFRICA	RESPONDENT

Before the Honourable Justice Musariri & Honourable Justice Makwande

Date of judgment: 20 October 2025

E. Nyakunika, for Applicant

H. Madzongwe & T. Mupamhadzi, for Respondent

MAKWANDE J:

This is an application for the quantification of damages in lieu of reinstatement, pursuant to the judgment of this Honourable Court under judgment number LC/H 407/24 handed down on the 21st of October 2024.

FACTUAL BACKGROUND

The applicant was engaged by the respondent in the capacity of Assistant Payroll Administrator, commencing 1 April 2023. The applicant terminated the employment relationship on 16 January 2024 as a consequence of the respondent's purported repudiatory conduct, which amounted to constructive dismissal.

Pursuant to a referral of 14 February 2024, the Designated Agent issued a determination on 8 July 2024 dismissing the applicant's claim of constructive dismissal. The applicant duly noted an appeal to this Court against the said determination. This Honourable Court, under Judgment No. LC/H/407/2024 dated

21 October 2024, allowed the appeal, setting aside the determination of the Designated Agent.

The court ordered that the respondent shall reinstate applicant without loss of salary and benefits and if reinstatement is untenable, respondent shall pay applicant damages in lieu of reinstatement in a sum of either agreed by the parties or assessed by the court.

The applicant purportedly made several attempts to engage the respondent in the hope of reaching an amicable agreement out of court regarding the quantification of damages to no avail.

Subsequently, the respondent proceeded to file an application for condonation for late filing an application for leave to appeal to the Supreme Court under case number LC/H/1213/24 which application was struck off the roll on 15 April 2025 under judgment number LC/H 155/25 for being a nullity as it was not properly before the court.

On the 27th of May 2025, the applicant filed this present application for quantification of the damages due to failure to reach an amicable agreement with the respondent.

Subsequently, on the 6 June 2025 the respondent filed another application which was combined application for condonation and leave to appeal to the Supreme Court under case number LCH492/25. This application was struck off the roll by this court on 21 July 2025 as a nullity judgment number LC/H/250/25.

SUBMISSIONS

Premature Application

The respondent contends that the applicant’s application is premature. This contention is predicated on the respondent having filed a combined application for condonation for the late filing of, and for, leave to appeal to the Supreme Court.

The respondent averred that this combined application operates to suspend the judgment of the court a quo, relying on the authority of Matenhere v Cornway College SC 16/24. That authority held that an appeal to the Supreme Court in terms of section 92F of the Labour Act suspends the operation of the Labour Court’s decision, its rationale being that the section is silent on the issue of suspension. It reasoned that in such circumstances common law principle of suspending a decision pending appeal therefore applies.

In response, the applicant argued that it waited 21 days after the respondent’s application for condonation under case number LC/H 1213/24 was struck from the roll. The applicant deemed the 21-day period sufficient for the respondent to have regularised its position or pursued any alternative remedy if any.

The applicant further submitted that the respondent failed to remedy the defects which occasioned the striking-off of its initial application. Instead, it elected to file the combined application a few days after the applicant filed its instant application for the quantification of damages.

This issue has been put to rest by this court under judgment number LC/H/250/25 wherein the application was struck off the roll.

Backpay

In support of its claim for consequential relief, the applicant seeks an order for backpay and founds this claim on a plethora of jurisprudential authority. One of the cases Ambali v Bata Shoe Company 1999 (1) ZLR 417 (S) held as follows;

“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 any loss to which he was entitled, of which he was deprived of as a result of the wrongful termination.”

The respondent opposed the claim for backpay, contending that such an award is legally untenable where the Applicant seeks damages in lieu of reinstatement. The respondent’s case was that backpay and damages are mutually exclusive remedies. This proposition is advanced on the authority of Professor L. Madhuku’s text, Labour Law in Zimbabwe (2015) at p. 270, which opines that the concept of backpay is in relation to reinstatement.

Bonus

Further, the applicant further made a claim for bonus but did not adduce any evidence to that effect except that applicant allocated 1 month’s salary for bonus. The respondent argued that the applicant was not entitled to bonus as that is the discretion of the employer. The respondent relied on the provisions of the case of First Mutual Life Limited v Muzivi SC 9/07 wherein it was held as follows:

“Payment of an annual bonus is generally discretionary on the part of the employer. It could not be said that the employee would have been awarded a bonus under all circumstances. A bonus would have depended on a clear record of performance.”

Cash in lieu of leave days

The applicant further made a claim of cash in lieu of leave days. He submitted that he accrued 7.5 leave days prior to the unlawful termination of his contract of employment and thereafter he had been accruing 2.5 days per month from the date

of unlawful dismissal to the date of judgment bringing the number of leave days to 30.

In response, the respondent argued against the claim by the applicant was misguided on the basis that applicant was only subject to receive cash in lieu of 7.5 days of leave. The other balance claimed did not apply as there is no law which prescribes the accrual of leave days to a person who is not employed regardless of the fact that the dismissal was lawful or not.

Damages in lieu of Reinstatement

With regards to the issue of damages in lieu of reinstatement, the applicant made a claim for 36 months of damages in lieu of reinstatement. He submitted that whilst the calculation covering a period from the date of unfair dismissal to the date the employee secures alternative employment or is reasonably expected to have secured alternative employment, there are several factors considered by the court in this regard.

Firstly, applicant argued that he did not fold his hands after losing employment however the economic climate is not conducive to secure alternative employment. The applicant averred that 18 months have lapsed without securing alternative employment despite diligent search. The applicant relied on the case of Hampton Fokoseni v Lobels Bakery SC 20/04 in which GWAUNZA JA emphasized as follows:

“… prospects of securing employment differ from one person to the other, being influenced by such considerations as the prevailing economic climate, the skills (if any) of the person concerned, experience, age and so on…”

Secondly, the applicant argued the issue of his age has militated against him. He is 51 years old, and most job opportunities have age limits of at most 45 years. The Applicant attached in evidence copies of vacancies which had age limits.

With regards to damages in lieu of reinstatement, the applicant further argued that it is a legal requirement that he should mitigate the loss of employment and that such duty arises immediately. ln Hampton Fokoseni v Lobels Bakery supra the court stated as follows pertaining the Applicant’s duty to mitigate his loss:

“the Appellant tried to get employment but was unsuccessful due to the current economic woes. Once it is accepted that the appellant attempted to find employment, it should therefore be accepted that he did not "sit around and do nothing". There is, in my view, a difference between looking for employment, and securing it. The principle enunciated in the Ambali case supra refers to "looking" for employment. ln adopting this approach, which I am satisfied is the correct one, cognizance should be taken of the fact that prospects of securing employment differ from one person to the other, being influenced by such considerations as the prevailing economic climate, the skills (if any) of the person concerned, experience, age and so on.”

The applicant submitted that he has taken reasonable steps to mitigate his loss, as he has applied for employment since the month, he was unfairly dismissed with his last purported application for employment being in May 2025. The applicant argued that the respondent’s claim that the job applications were for the sole purpose of creating a record for the purpose of making the present application are without basis.

In response to the claim of the damages in lieu of reinstatement the respondent argued that the applicant had a duty to mitigate his loss. The respondent relied on the sentiments held in Ambali v Bata Shoe Company Limited 1999 (1) ZLR 417 as follows:

“… 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.”

The respondent submitted that there are several factors that are considered when assessing a reasonable period an employee is expected to have alternative

employment as adduced in Fokoseni case (supra). The factors adduced included but were not limited to; age, educational experience, economic environment, unemployment levels and efforts made by employee to seek alternative employment.

The respondent argued that the failure by the applicant to present his CV to assist the court in assessment of attempts for mitigation of loss is detrimental to applicant. The respondent further argued that the applicant is 51 years and has considerable maturity which is attractive to employers requiring mature individuals. In view of the new age of national retirement, the applicant still has 19 productive years ahead of him.

The respondent further argued that the applicant has also not been candid with this court on his employment status. His LinkedIn status indicates that he is employed as a farm administrator since February 2024, yet he has not stated how much he earns.

The respondent in the circumstances offered damages in lieu of reinstatement to cover a period of 6 months.

ANALYSIS

The law on backpay where a party is seeking damages in lieu of reinstatement has been clearly outlined by the courts. In Leopard Rock Hotel Co (Pvt) v Van Beek SC 6/2000 the court commented as follows;

“Back-pay is thus a concept associated with reinstatement if an employee is reinstated, she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal, but is not reinstated, she will be entitled to ‘damages’, a major element of which will be back-pay. Perhaps more correctly one should say the damages will be assessed by reference to the back pay lost. But here the back pay will be limited to a period from the date of wrongful dismissal to a date by which she could, with reasonable diligence, have obtained alternative employment.”

The reasoning in Leopard Rock was reiterated in Madhutter Mining Co v Tapfuma

SC299/12 where the court held as follows;

“What is eminently clear from this analysis is that damages in lieu of reinstatement become due and are to be reckoned from the date of an employee’s wrongful dismissal. Further, that in relation to the period from and during which the damages are to be assessed, no distinction is made between the salary arrears and benefits on the one hand, and damages proper on the other. All must be assessed within the same period albeit varying time periods and considerations peculiar to the assessment in question may apply.”

Therefore, the applicant misdirected himself by considering backpay as separate from damages. The correct position is that backpay is considered as a component of damages in lieu of reinstatement.

Having laid down the law that the calculation for damages in lieu of reinstatement is calculated from the date of the wrongful dismissal. The next step for this court is to deal with the second leg of the calculation which is the date by which the applicant could have secured alternative employment. In this regard several factors come into play. As held in Redstar Wholesalers v Edmore Mabika SC 52/05;

“The Labour Court’s approach was wrong and its consequent ruling grossly unreasonable. The court is not entitled to pluck a figure out of a hat because it is of the view that this figure ‘meets the justice of the case’. Instead, the court is required to hear evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment.”

The evidence led in this court supports the applicant’s averment that he took reasonable steps to find alternative employment. He presented to the court job applications that he made to several potential employers although he did not find alternative employment. The respondent argued that the applicant should have placed his CV before the court to assist it in assessment of attempts for mitigation of loss. This argument does not to hold water because it is clear that the applicant

was employed as a Payroll Administrator the job categories which he applied for seem to be in tandem with the role that he held with respondent. In all fairness the applicant took steps to seek alternative employment. In this regard, he took steps to mitigate his loss.

The court cannot turn a blind eye to the fact that formal employment opportunities are scarce these days. The applicant is 51years, he is no longer in his prime age. Whilst it can be argued that he brings vast experience but that is not the only consideration made by employers. An illustration that the applicant is out of his prime age, is the vacancy attached by the applicant of the National Prosecuting Authority, in which the maximum years required is 45 years.

The respondent raised an issue that the applicant on his LinkedIn indicated that he was a Farm Administrator and has been so employed since February 2024. The applicant did not dispute that this is what is stated on his LinkedIn but submitted that that is not the state of affairs. He only placed it on this social platform so that his profile becomes attractive. Further that had he been so employed, he would not have made the several applications that he made. This issue regarding the applicant’s employment status has not been proved beyond the update on the LinkedIn. The respondent has not shown any further concrete evidence that suggests that indeed the applicant is employed. Had further evidence been brought before the court for example other assertions by the applicant to prospective employers that he was so employed he would have been an author of his own dilemma.

On the other hand, this court is of the view that the claim for 36 months’ damages is not justified. The applicant could have mitigated his loss in other ways other than being employed formally. He conceded that he did so by setting up a backyard garden. He is obtaining income from that.

The court view is that a period of 12 months is appropriate in the circumstances. The rate of payment being that which was applicable at the time of the unfair dismissal.

On the issue of bonus, the applicant did not adduce evidence as to why he should be awarded bonus. As correctly averred by the respondent, the payment of bonus is at the discretion of the employer based on performance. See First Mutual Life Limited v Muzivi SC 9/07 & ZUPCO v Daison 2002 (2) ZLR 628 (S). In the circumstances, the applicant having the onus to prove on a balance of probabilities his entitlement to bonus failed to prove his vested right to bonus.

Further, with regards to the issue of cash in lieu of leave days, the applicant claimed for the period from the date of dismissal to the date of reinstatement. This court leans in favour of the respondent that applicant is only entitled to the 7.5 days that were due to him at the time of the dismissal and nothing further.

The damages due to the applicant are calculated as follows:

DAMAGES IN LIEU OF REINSTAMENT USING SALARY RATE OF US$ 521,86.

US$521,86 x 12 months = US$ 6 262.32

DAMAGES IN LIEU OF REINSTAMENT USING SALARY RATE OF $ 2 959 194,06 ZWL EQUIVALENT TO $ 1 184,28 ZIG

$ 1 184, 28 Zig x 12 months = $ 14 211.36 Zig

CASH IN LIEU OF LEAVE DAYS ACCRUED

ACCRUED LEAVE DAYS AT DISMISSAL = 7.5 DAYS ACCRUING AT A RATE OF 2.5 DAYS

TOTAL LEAVE DAYS: 7.5 DAYS

US$521,86 for the month (22 DAYS)

US$521,86 divided by 22

=US$ 23.72 PER DAY

FOR THE 7.5 LEAVE DAYS

= US$ 23,72 x 7.5

= US$ 177.90

CASH IN LIEU OF LEAVE DAYS ACCRUED ZIG

Accrued leave days are 7.5 days

$ 1 184,28 Zig divided by 22 days

= 53,83 Zig PER DAY

FOR 7, 5 LEAVE DAYS

=7,5 x 53,83 Zig

= $ 403,725 Zig

TOTAL: US $ 6 440,22 & AND $ 14 615,085

DISPOSITION

Wherefore it is and hereby ordered that:

Respondent shall pay applicant’s damages for the unlawful dismissal in the sum of US $ 6 440,22 and $ 14 615,085 ZIG.

Respondent shall pay applicant’s costs of suit.