St Johns Association of Zimbabwe v Fiston Chigwende

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/719/2016
HARARE, 5 OCTOBER 2016 &
CASE NO LC/H/312/2016
18 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/719/2016

HARARE, 5 OCTOBER 2016 &			               CASE NO LC/H/312/2016

18 NOVEMBER 2016

In the matter between

ST JOHNS ASSOCIATION OF ZIMBABWE				APPELLANT

Versus

FISTON CHIGWENDE							RESPONDENT

Before the Honourable Maxwell J

For the Appellant	N R Mutasa (Legal Practitioner)

For the Respondent    Mr A A Makore (Legal Practitioner)

MAXWELL J:

This is an appeal against an arbitral award on quantification of damages. The arbitrator had issued an award on 20 September 2015 ordering reinstatement of the respondent failing which either party could approach the tribunal for quantification. The arbitrator quantified the damages due to the respondent basing on written submissions and oral evidence. He awarded:

Payment of twelve months’ salary as damages for loss of employment amounting to $6 900-00.

Payment of salary back pay from January to September 2015 amounting to $4 025-00.

Payment of cash in lieu of leave of two months amounting to $930-00.

The arbitrator also dismissed the claim for overtime.

The appellant was aggrieved and noted an appeal on the following grounds:

The learned arbitrator erred in law when he failed to appreciate that the period for which the appellant must pay the respondent’s back pay and cash in lieu of leave is calculated up to the date of the award, being 22 June 2015 and not up to the date when the respondent became aware of the award.

The learned arbitrator erred at law in holding that a period of twelve months was the reasonable time within which the respondent ought to have secured alternative employment, thereby resulting in her awarding damages in lieu of reinstatement for a grossly unreasonable and excessive period.

The appellant prayed for the amendment of the award to reflect a period of three months for damages in lieu of reinstatement, fifty-five days for cash in lieu of leave and loss of salary due to suspension from 15 January 2015 to June 2015.

The respondent opposed the appeal on the basis that it had no merit. He stated that even though the award is dated 22 June 2015 it was only issued on 16 September 2015 and the respondent received it on 21 September 2015. The respondent also stated that the arbitrator carefully considered evidence which was presented before her on his efforts to mitigate his loss of employment, and that twelve months is a reasonable period within which he is expected to secure alternative employment.

At the hearing of the matter counsel for the appellant advised the court that the first ground of appeal had been overtaken by events as parties had discussed and settled out of court. This judgment is therefore on the second ground of appeal. The appellant contends that twelve months is a grossly unreasonable and excessive period within which the respondent ought to have secured alternative employment. The arbitrator was satisfied with the respondent’s efforts to try and look for alternative employment. He confirmed that the application letters which were rejected were tabled. Even though the respondent had asked for damages of twenty-four months’ salary, the arbitrator was of the view that twelve months’ salary is reasonable. He stated “the economic situation is not so good and it’s even impossible for one to secure alternative employment in an environment where companies are laying off staff.”

In heads of argument, counsel for the appellant argues that all the employees who left the appellant’s employ mid 2015 have already sought employment and the respondent should also have secured alternative employment if he tried to mitigate loss. The words of GWAUNZA JA in Hampton Fokoseni v Lobels Bakery SC 20/04 are apposite. The learned Judge stated on page 3 of the cyclostyled judgment:

“… cognisance 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.”

In my view therefore it is neither here nor there that others may have secured alternative employment. Each person’s case must be considered individually. No evidence or facts have been placed before the court to substantiate that a period of three moths would have sufficed for the respondent to get alternative employment. Counsel for the appellant referred to the case of Delta Beverages Ltd v Murandu SC 38-15 (cited as SC 349-13 in the appellant’s heads of argument). In that case it was stated that it would be necessary to hear evidence on age, health and qualifications and not speculate. In that case the court ordered payment of six months’ salary as damages in lieu of reinstatement. I note that the period involved in that case is between the year 2000 and 2002. In my view a period of twelve months cannot be said to be excessive in the current economic environment. As stated by the arbitrator companies are laying off staff. I therefore find no basis for interfering with the award.

Accordingly the following order is made:

The appeal be and is hereby dismissed for lack of merit.

Costa & Madzonga, appellant’s legal practitioners

Chinawa Legal Practitioners, respondent’s legal practitioners