Simba Masaiti v C.M.E.D. (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/209/13
HELD AT HARARE
21ST MAY 2013
CASE NO
JUDGMENT NO LC/H/209/13
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IN THE LABOUR COURT OF ZIMBABWE	        JUDGMENT NO LC/H/209/13

HELD AT HARARE 21ST MAY 2013	                   CASE NO LC/H/670/10

In the matter between:-

SIMBA MASAITI					Applicant

And

C.M.E.D. (PVT) LTD				Respondent

Before The Honourable E Muchawa, President

And

The Honourable P Muzofa, President

For Applicant		Mr M Nkomo (Legal Practitioner)

For Respondent		Mr T Chiturumani (Legal Practitioner)

MUZOFA, P:

The matter comes before this Court for quantification of damages in pursuit of this Court’s order.  The Applicant’s claim is for payment of an equivalent of  seventy months’ salary totalling USD36 470.00.  This amount is broken down as follows:-

Premature termination (36 months x $521.00)	$18 756.00

Punitive damages (12 months x $521.00)		     6 252.00

Gratuity (22 months x $521.00)				  11 462.00

The Respondent opposed the application but offered an equivalent of seven month’s salary broken down as follows

Punitive damages four months’ salary

Notice pay three months’ salary

The Respondent upon terminating Applicant’s contract paid $12 430.17.

The Applicant was employed by Respondent from 2002.  He was charged for gross unsatisfactory work/incompetence in terms of the CMED Code of Conduct and theft/fraud including attempted theft/fraud.  He was found liable and dismissed.  Applicant appealed to the Respondent’s Human Resources Manager and he was unsuccessful.  He approached this Court on appeal and the Court’s order was that:

Respondent reinstates Appellant without loss of salary and benefits.

If reinstatement is no longer feasible, payment of damages in lieu of reinstatement.

The quantum of damages is to be agreed by the parties or failing agreement either party may approach the Labour Court for quantification.

The Applicant then approached this Court for quantification in line with that order.

In applications such as this one the Applicant has to prove the damages that he claims.  The principles to be followed in assessing damages to be paid were laid out by Gubbay CJ (as he was then) in Gauntlet Security Services (Pvt) Ltd v Leonard 1997 (1) ZLR 583 (S)

“The employee is entitled to be awarded the amount of wages or salary

He would have earned save for the premature termination of his contract by the employer”

Applicant has broken down the claim for damages into three parts and I will deal with them seriatim

Punitive Damages

In terms of Section 89 (2) (c) (iii) (iii) of the Labour Act Chapter 28:01

“...should damages be awarded instead of reinstatement or employment as a result of an untenable working relationship arising from unlawful dismissal by the employer, punitive damages may be imposed”.

This is not mandatory it is to be awarded in a deserving case.  The Applicant’s claim for punitive damages is based on the premise to punish the employer for rendering the Applicant jobless.  In my view this is not a deserving case to award punitive damages.  This is so because Respondent has indicated that the working relationship between the parties has been rendered untenable.  The employer no longer trusts the employee.  In any event the reinstatement ordered by this Court with the alternative of payment of damages was not based on the fact that the Applicant did not commit the misdemeanour.  He committed it, but the Court was of the view that the sentence of dismissal was too severe.  For those reasons I am of the opinion that there’s no need for an order for punitive damages in this case, especially awarded separately.  As was noted by Mc Nally JA in his obiter dictum in the case of Ambali v Bata Shoe Company Ltd 1999 (1) ZLR that there is no basis, in a claim in contract such as this, for assessing punitive damages.  It is an established principle that in assessing damages in such cases the damages should be the direct or probable consequence of the wrongful dismissal of the employee from employment PTC v Swabata sc 42/03.

Pre-mature termination

It was submitted on behalf of the Applicant that, but for the pre-mature termination Applicant had 30 years legitimate expectation of employment.  Further it was argued that the prevailing socio-economic environment with an unemployment rate of between 75 – 90% it would be difficult for Applicant to secure employment.  There was no evidence before the Court as to how long it would take Applicant to get a job.  There was no evidence to show that he made efforts to look for employment.  The Applicant has no meaningful qualifications, and has therefore limited skills as was submitted by his legal practitioner.  The Respondent indicated that the Applicant was supposed to mitigate his loss.  For this submission he relied on the case of Ambali v Bata Shoe Company Ltd supra.  The claim for damages equivalent to thirty six months was based on the Kuda Madyara v Globe & Phoenix Industries (Pvt) Ltd SC 63/02, where the Appellant was awarded damages equivalent to thirty six months’ salary.  The amount was assessed on the basis that the period within which the Appellant could have reasonably expected to find alternative employment was three years.  In casu Applicant does not have any specialised skills he was a petrol attendant.  Infact he joined the Respondent company as a handyman.  In addition he did not mitigate his loss.  I believe he can reasonably secure employment within eighteen months.  As such damages equivalent to eighteen months’ salary would meet the justice of this case.

Gratuity

Applicant’s legal representative submitted that the basis for this form of damages was that Respondent had an option of engaging Applicant then retrenched him and gratuity is entrenched in retrenchment.  He sought to rely on the case of PTC v P.G. Swabata SC/42/03.  The case before the court is distinguishable from the PTC v Swabata (supra) case in that in this case the Respondent had not retrenched any of its employees.  Therefore the point that gratuity is entrenched in retrenchment falls away.  In any event gratuity as submitted by Respondent is based on mutual termination or retrenchment, rather than a claim for damages in lieu of reinstatement.  I agree with the Respondent’s submissions that gratuity is more of a thank you token or donation.  Therefore an order for gratuity in this case is inappropriate.

The Applicant had been paid US$12 430.1.  The Respondent’s legal practitioner could not explain what that amount was for.  It was submitted on behalf of the Applicant that this was back pay according to the spirit of the judgment.  The Applicant’s legal practitioners upon request to avail to the court proof of the salary filed a copy of the Applicant’s pay sheet on 31 May 2013.  The document shows that Applicant was paid back pay from December 2010 to August 2012.  Applicant’s contract of employment had been unlawfully terminated in November 2010 and the order for reinstatement by this Court was made in August 2012.  The Applicant’s submission in so far as the purpose of the payment of $12 430.17 is acceptable in my view.

The Applicant was paid back pay, he was lucky to get it.  In the matter of Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S) at 268 A-B it was held that

“... the word ‘reinstate’ or “reinstatement” carries no automatic retrospective connotation, either in ordinary language or in our legislation.  Normally it means simply that the person concerned will be placed again in his/her former job.  If retrospectively is intended, one would normally look for additional words such as “with effect from the date of dismissal” or “with effect from a particular date in the past” or with back pay and all benefits from ... date”

Applying this test to the order of reinstatement issued by this Court, it is clear that retrospectivity was not intended.  However since the Respondent chose to pay the back pay that decision may not be inteferred with.

The Applicant’s gross salary was $521.00.   The award of eighteen months for pre-mature termination makes the Applicant be entitled to $9 378.00 less PAYE.

In the circumstances the following order is made,

That the Respondent shall pay to the Applicant the sum of  US$9 378.00 less PAYE together with interest at the prescribed rate from the date of this order to the date of payment in full.

There is no order as to costs.

Donsa, Nkomo & Mutangi, Applicant’s Legal Practitioners

T.K. Hove & Partners, Respondent’s Legal Practitioners

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PRESIDENT

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E. MUCHAWA				I agree

PRESIDENT