Sithabile Hwenghwere v Unifreight Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO
LC/H/84/2020
HARARE, 04 MARCH 2020
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE         JUDGEMENT NO LC/H/84/2020

HARARE, 04 MARCH 2020               			CASE NO LC/H/APP/965/18

AND 13 MARCH 2020

In the matter between:-

SITHABILE HWENGWERE				Applicant

And

UNIFREIGHT LIMITED					Respondent

Before the Honourable CHIVIZHE, J

For Applicant		Mr N.T. Tsarwe (Legal Practitioner)

For Respondent 		Mr R. Matsikidze (Legal Practitioner)

CHIVIZHE, J:

This is an application for quantification of damages for loss of employment. The application is opposed.

The material background facts to the matter are as follows. The applicant was employed by the Respondent as an Auto Electrician. She was engaged from 2008 to the 12th of July 2012 when she was dismissed by Respondent following a disciplinary process. Aggrieved with the determination and penalty by Respondent, Applicant approached this court with an application for review conjoined with an appeal. On the 21st of November 2014 this court handed down an order dated 21st November, 2014 the operative part of which reads as follows;

It is accordingly ordered as follows;

The application for review succeeds.

The disciplinary proceedings instituted by the Respondent being premised on an invalid Code of Conduct at the time be and are hereby set aside.

The Respondent shall reinstate the Appellant with effect from date of unlawful dismissal without any loss of salary and benefits.

In the event that reinstatement is no longer an option, Respondent shall pay Appellant damages in lieu of reinstatement quantum of which is to be agreed upon by both parties failing which either party can approach the Labour Court for quantification of damages.

The Respondent was dissatisfied with this court’s judgement and noted an appeal to the Supreme Court. On the 10th of July 2018 the Supreme Court heard and dismissed the appeal through an order which was handed down on 18th of July 2018. The order was amplified through a judgment handed down being Judgement Number SC 20/20.

THE APPLICATION

The Applicant in her papers claims that following an attempt by the parties to settle which attempt resulted in a deadlock she opted to claim for damages in lieu of reinstatement which damages include back pay as outlined in the Labour Court Judgement. She submits that on the basis of the law where reinstatement is ordered without loss of pay and benefits she is entitled to back pay from the date of unlawful dismissal to the date of award. She is therefore claiming her salary and benefits from 12th of July 2012 (which is the date of unlawful dismissal) to the 18th of July, 2018 (which is the date of the Supreme Court order). The total period is 72 (seventy-two) months. She is thus claiming US$ 174.31 per week x 4 = US$ 674.24 x 72 months = US$ 50 201.28.

Applicant is also claiming damages in lieu of reinstatement quantified to 6 years. The basis of her claiming six years is that she did attempt to mitigate her losses but due to the economic crisis bedevilling the country during the relevant period i.e. 2012 onwards, she failed to obtain alternative employment. She is therefore praying for damages to cover 6 years as it may take her longer than that to find alternative employment. She is thus claiming US $ 174.31 per week x 4 = US$ 674.24 x 72 months = US$ 50 201.28.

The application is opposed by the Respondent. In its opposing Affidavit Respondent submits that the claims by Applicant are not supported by any law. The current position of the law is that back pay forms a component of damages and should not therefore be claimed separately. It is Respondent’s further contention that Applicant also failed to place before the court adequate evidence of her attempts to mitigate her losses. Respondent submits further that considering Applicant’s experience as Auto Electrician for 14 years she ought to have found an alternative job within a short period. The Respondent also contends that the correct salary level ought to be US$ 141.00. On the basis of Applicant failure to justify her claims or to provide adequate proof of mitigation the Respondent prayer is for the application to be dismissed with costs.

PARTIES SUBMISSIONS

When the parties appeared before me, Mr Tsarwe, for the Applicant submitted that the main dispute between the parties related to the interpretation of concept of ‘back pay’ as to whether it formed a component of damages in lieu of reinstatement. He submitted that Applicant position reflected the current position of the law that where a court orders reinstatement with retrospective effect there are two components to the damages payable i.e. firstly, the salary/benefit to which employee was entitled to from the date of unlawful dismissed to the date of reinstatement order by the Court. He relied on Kuda Madyara vs Globe & Phoenix Chingeri & Ors vs Plan International 2002 (2) ZLR 261 and ZUPCO vs Daison 2002 (2) ZLR 628.

The second component was said to be compensation for loss of employment which was the period within which the employee was expected to have obtained alternative employment. Mr Tsarwe submitted that in this case Applicant was seeking for back pay as well as salary to cover a period of six years as compensation for loss of employment. He further submitted that the law was clear that the onus was on the employer to satisfy the court that an employee ought to have obtained alternative employment. He relied on Nyaguse vs Mkwasine Estates 2000 (1) ZLR p579 (S) for this proposition.

Mr R Matsikidze, for the Respondent, submitted that the Applicant was operating under a misconception of the law. The current position of the law was that damages in lieu of reinstatement are computed to include back pay. In other words there is no longer the distinction between the concept of back pay and damages in lieu of reinstatement. An employee is instead expected to mitigate his or her loss from the date of unlawful dismissal. The Applicant therefore had a duty to start looking for employment soon after the date of unlawful termination. The Applicant had however failed to prove she took positive measures to mitigate her losses. The evidence placed before the court was according to Respondent inadequate. The Respondent relied on the decisions of the Supreme Court in Madhatter Mining Company vs Marvellous Tapfuma SC 51-14. It was also Respondent view that on the basis of the same decision in Madhatter Applicant could have even sought to obtain employment in the unskilled sector not necessarily in her field of qualification. Respondent view was that Applicant had also failed to address the court on the economic situation prevailing during the period. It was however common case that the economic meltdown started in 2015. Considering that she was terminated in 2012 The Applicant ought to therefore found alternative employment in 2012 or at least within 12 months of her dismissal. In the circumstances Applicant was entitled to compensation in the form of salary to cover 12 months i.e. US$ 697.24 x 12 months = US$ 8 366.88.

Mr Tsarwe, in reply, submitted that the period of 12 months submitted by Mr Matsikidze was not cast in stone. The court still could exercise its discretion to award the reasonable period in which Applicant was expected to find alternative employment taking into account the factors as submitted in her application. The application showed that she was employed as an auto electrician; she had been employed for 4 years when she was dismissed; she was aged 29 then; she was now 36 years of age; she had applied for jobs in her sector and failed to find employment for the duration of 6 years; she had not considered looking in the unskilled sector; the economic situation in 2012 was certainly better than at present but it had to be noted that the economy had taken a nose dive in 2013. The period claimed of 6 years for compensation for loss of employment was therefore reasonable in the circumstances and the court was urged to award that as well as the back pay.

The first point raised in opposition by the Respondent that Applicant had erred in quantifying the back pays as separate from damages in lieu of reinstatement is clearly with merit. It is indeed the position of the law based on the decision in Madhatter Mining Company vs Marvellous Tapfuma SC 51-14 that where a person is wrongfully dismissed and successfully appeals and reinstatement is ordered with an alternative of damages in lieu of reinstatement such damages would ordinarily include back pay/wages reckoned from the date of wrongful dismissal and compensation for any loss to which she was entitled but which she was deprived as a result of the wrongful termination. Damages in lieu of reinstatement are to therefore be reckoned from the date of the employee’s wrongful dismissal not from the date of order of reinstatement. It was the further finding in the Madhatter case that in relation to the period from and during which damages are to be assessed no distinction is made between the salary arrears and benefits on one hand and damages proper on the other hand. They are supposed to be assessed within the same period. The Supreme Court in Madhatter further found that an employee is obliged to mitigate his loss by looking for a job from the date of his unlawful dismissal.

Reference is made to the decision on page 9 of the cyclostyled judgement.

“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.

The respondent argues that damages in lieu of reinstatement must be reckoned prospectively from the date on which such reinstatement, by order of the court, could have taken place.  By arguing thus, the respondent is effectively urging this court to separate the periods during which salary arrears and benefits on the one hand, and any damages on the other, are to be assessed.  As stated above, this approach would run counter to and does not find support in the law and established authorities on this subject.  In particular, the approach that the respondent advocates and which the court a quo adopted, effectively suggests that until a dispute of this nature is finally resolved, no matter how long it might take, the employee is not obliged to do anything to mitigate his loss.  The authorities are very clear on the point that the employee is legally obliged to mitigate his loss by looking for a job from the date of his unlawful dismissal.  (See for instance, Madyara vs Globe and Phoenix Industries Pvt Ltd) 2002 (2) ZLR 269 (S)).  The point is emphatically stressed in the following terms in Ambali’s case (supra), pages 418-419;

“I think 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…. There are those also, and Ambali is one of them, who seem to believe that they must on no account look for alternative employment; that so long as their case is pending they must preserve their unemployed status; that if they look for and find a job in the meanwhile they will destroy their claim.”

It cannot be emphasised strongly that this is wrong.     ….if an employee is wrongfully dismissed his duty to mitigate his loss arises immediately. (Emphasis added).

The respondent argues further that because the respondent was not reinstated on 1 October 2006, the date of his wrongful dismissal was thereby ‘shifted’ from 11 February 2003 to 1 October 2006.  This latter argument demonstrates that the respondent was cognisant of the need to reckon a claim for damages in lieu of reinstatement, from the date of wrongful dismissal.

I do not find merit in the respondent’s contentions in this respect.  The date of his wrongful dismissal was 11 February 2003.  As a matter of fact, and like any date that has passed, it is fixed in history and immutable.  It is not capable of being shifted, even metaphorically.  Thus the assessment of any damages to which the respondent might have been entitled to, could only be reckoned from 11 February 2003 up to the date of reinstatement.”

On the basis of the law as enunciated in Madhatter the Applicant in this case has committed two errors of law; firstly she improperly claimed back pay separately from damages in lieu of reinstatement. Secondly, the Applicant has also asked for damages for loss of employment to which she might have been entitled to be reckoned from the date of order of reinstatement. The assessment of any damages ought to be reckoned from the date of wrongful dismissal i.e. from 12th of July, 2012.

The next issue that the court ought to address is the salary rate. Respondent in its papers opposes the salary rate that was raised by Applicant. Although the point was raised in Respondent papers the Respondent did not persist with the argument in oral arguments. The point is therefore considered as abandoned by the Respondent. The Applicant in any event tendered in evidence a copy of her pay slip indicating the correct level of salary as US$ 174.31 per week. Although the salary is denominated in United States Dollars the Applicant is only entitled to the same amount in RTGS Dollars (basis)

The third issue relates to the issue of mitigation. The Applicant in her papers submitted that she had attempted to obtain alternative employment in Zimbabwe and abroad. She had from 2012 not just sat on her laurels but diligently sought alternative employment. She tendered in evidence correspondences to and from the relevant companies she had approached. She however failed to obtain employment and to date remains unemployed. She believes in the circumstances an award of damages to cover 6 years would be adequate.

The Respondent in counter-argument submitted that on the basis of evidence tendered by Applicant, Applicant had not diligently sought to mitigate her loss. She had sat on her laurels. Considering her working experience of 14 years she ought to have found another job.

Taking into account the position of law as enunciated in Madhatter the Applicant ought to have mitigated her loss with effect from the date of wrongful dismissal i.e. 18 months July 2012 – July 2013. It is indeed correct as submitted by Respondent that the economy of Zimbabwe was growing from 2009 to 2013. The collapse only took place after 2013. On the basis of this position the Applicant clearly could have sought and obtained alternation employment within 15 months. The evidence tendered however shows that Applicant in the space of 6 years she is claiming wrote six letters that essentially calculates to one letter a year. The court is however being too generous because the reality is in one of the years for example 2013 she did not even write one letter.

The evidence tendered further shows that she is an Auto Electrician by qualification. No plausible reason was tendered as to why the Applicant did not resort to self-employed status. Given the economic conditions prevailing at the time a lot of professionals did resort to self-employment as indicated by Respondent. The evidence clearly points to an employee who was just sitting and waiting for the court order to grant her damages. The evidence certainly does not point to a diligent effort by Applicant to mitigate her loss.

Considering that the Applicant was terminated in 2012, and that the economy then was still much better than the present only taking a nose dive in 2013. Considering also that Applicant was as at the time of termination29 years old, it is the court’s view that the Applicant ought if she had diligently applied herself obtained alternative employment within 18 months.

It is accordingly ordered as follows;

The Application succeeds.

The Respondent is directed to pay to Applicant the equivalent of 18 months salary i.e.$697-24 x 18 = $12 550-32 in damages for loss of employment.

There is no order as to costs.

Tadiwa and Associates, applicant’s legal practitioners

Matsikidze & Mucheche, respondent’s legal practitioners