Stephen Mungofa v Chatprill Enterprises Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/239/14
HELD AT HARARE 26TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/239/14

HELD AT HARARE 26TH MARCH 2014 		CASE NO LC/ORD/H/21/12

AND 25TH APRIL 2014

In the matter between:-

STEPHEN MUNGOFA				Applicant

And

CHATPRILL ENTERPRISES LTD			Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		J Mandevere (Legal Practitioner)

For Respondent		Ms M Kanende (Legal Practitioner)

MAXWELL, J:

This is an application for quantification of damages following an order of this Court dated 15 May 2013.  This Court ordered the reinstatement of applicant without loss of salary and benefits.  In the event that reinstatement was no longer possible, respondent was to pay damages in lieu of reinstatement.  The parties failed to agree on the quantum of damages.

There had been a dispute as to the amount of salary.  Applicant had been receiving.  Applicant was claiming on amount of $250.00 per month whereas respondent submitted that the correct figure was $227 per month.  At the hearing of this matter applicant conceded that the salary was $227.38 per month.  The parties were agreed that applicant was entitled to back-pay for a period of 15 months.  Applicant had been dismissed on 12 January 2012 and the order of reinstatement was given on 10 May 2013.  The parties were also agreed that the amount of back-pay would accrue interest at the prescribed rate from 12 January 2012 up to the date of payment.  The total amount agreed as back-pay is 15 x $227/38 which is $3 410.70.

The only issue for determination is the quantum of damages in lieu of reinstatement.  Applicant requested for damages for a period of 6 years.  The basis for his request submitted as that

Respondent is a sizeable institution and not reinstating applicant was malicious as the employment relationship had not broken down.

Applicant’s dismissal was a complete flagrant disregard of procedures and labour laws.  The 6 years damages would highlight that reinstatement was a better option.

Applicant is fairly old, has two wives and 12 children who were subjected to lasting psychological imbalances.  Due to the loss of employment he can no longer send his children to school.

Applicant believes that an award of 6 years damages is not outrageous

as the courts have been awarding between 3 and 5 years.  Applicant would not get any other employment as he is uneducated and old.  He had been employed on the basis of a third party’s recommendation that as an honest man he can serve as a guard or watchman.  After his dismissal from employment he had not managed to secure any employment.  He engaged in carving cooking sticks and was realizing $20 a month.

Respondent alleged that applicant had not placed enough evidence before the court to justify a claim for 6 years damages.  Respondent submitted that no proof has been tendered that applicant made effort to look for alternative employment.

Further respondent submitted that even the $20 a month alleged has not been proven.  Respondent also submitted that as applicant had not discharged the onus of proving efforts to mitigate damages the employer should not be burdened by an order of payment of such large sums of money as applicant is requesting.  Respondent was of the view that as a watchman 6 months would be reasonable.

Counsel for Applicant submitted that courts have been awarding damages for period ranging between 3 and 5 years.  He made reference to the following cases among others

Posts & Telecommunications Corporation v P.G. Swabata SC 43/03

Redstar Wholesalers v Mabika SC 52/05

My understanding of those cases is that the damages in lieu of

reinstatement are paid for the period from the date of wrongful dismissal to the date of the order of reinstatement, less whatever amounts the employee earned from any alternative employment he may have secured after the dismissal.  In my view this is the amount that parties agreed on, i.e. $3 410.70.  Following the above cases, from that amount a deduction of $20 per month must be made.  The result would be $20 per month x 15 months = $300.  The amount of $300 must be deducted from the total of $3 410.70 leaving a balance of $3 110.70.

The question is whether or not the $20 a month can be taken to be sufficient mitigation of loss.

In the case of Fokoseni v Lobel Bakery  SC 20/64, GWAUNZA JA stated that

“… cognisance should be taken of me fact that prospects of security 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 conclusion in the Fokoseni case applies in casu, that it is doubtful that given his age and lack of any professional skills, applicant could have done more than this to mitigate his loss.

In my view the real issue the parties were not agreeing on is the damages for the premature termination of his employment contract.  Respondent has offered 6 months and I find that reasonable.  At the rate of $227.38 per month the total would be $1 364.28.

Accordingly I ward as follows

Back pay

15 month x $227.38 = 		$3 410.70

15 months x $20 (mitigation) -        300.00

$3 110.70

Damages for premature termination of the employment contract

6 months x $227.38  = $1364.28

Total award				$4 474.98

Kadzere, Hungwe & Mandevere, applicant’s legal practitioners

Tavenhave & Machingauta, respondent’s legal practitioners