Swiss Motors (Pvt) Ltd v Radius Mandaza

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/225/25
HARARE, 17 JUNE, 2025 AND
23 JUNE 2025
CASE NO LC/H/147/25
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/225/25

HARARE, 17 JUNE, 2025 AND

23 JUNE 2025

SWISS MOTORS (PVT) LTD

RADIUS MANDAZA

CASE NO LC/H/147/25

APPELLANT

RESPONDENT

Before the Honourable G. Musariri, Judge:

For Appellant

For Respondent

- N. Mangoi, Attorney

- K. Chirenje, Unionist

MUSARIRI, J:

On 27 January 2025 at Harare, Designated Agent CT Dururu issued a determination which ordered appellant to pay respondent an amount of US$8,143.47 in respect of notice pay, leave pay and damages for loss of employment. Appellant then appealed to this Court in terms of Section 92D of the Labour Act Chapter 28:01. Respondent opposed the appeal.

The grounds of appeal were quadruplet thus;

“1. The Designated Agent erred and misdirected himself and erred at law in awarding the Respondent, 24 months’ salary as damages in lieu of reinstatement without considering the Respondent’s duty to mitigate his damages for loss of employment.

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JUDGMENT NO LC/H/225/25 CASE NO LC/H/147/25

2. The Designated Agent misdirected himself in awarding an incompetent order

denominated exclusively in United States Dollars without providing an option for payment in ZWG, and there was no justification for such exclusive denomination.

3. The Designated Agent misdirected himself and erred at law in failing to make a finding

that the Respondent was employed as a driver and a reasonable period in which the Respondent ought to have secured alternative employment in the motor industry was three (3) months.

4. The Designated Agent misdirected himself and erred at law in awarding the Respondent encashment of 25 leave days as per the determination by Honorable Vheremu dated 31 August 2023 in the circumstances where such claim was not granted by the Labour Court or the Supreme Court.”

Appellant prayed that the award to Respondent be reduced to an amount of US$1,755.48 payable

in local currency. The Respondent’s opposing affidavit countered thus;

“On Merits

Ad Paragraph 1

3.4 There is nowhere the Respondent could be given 3 months wages as damages proposed by the Appellant.

3.5 In the case of Kudakwashe Murandu v Delta Beverages SC 38/15 the Court (awarded 36 months wages as damages).

3.6 In view of the above, the Designated Agent of the NEC Motor Industry’s award of 24

months damages to the respondent is justified and as mitigated during the hearing.

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4. Ad Paragraph 2

… The issue of which currency to use to settle the matter cannot be a valid appealable ground at all since the Designated Agent did not state that the Appellant should strictly pay in United States dollars only but used it as a currency that was being paid to the Respondent at the time. It is common cause that Zimbabwe currently is using multiple currencies as legal tender…

5. Ad Paragraph 3

The Respondent cannot be employed elsewhere currently due to the non-conclusion of a Labour Case between him and the Appellants… it shall definitely take a considerable length of time before Respondent secures alternative employment…

6. Ad Paragraph 4

6.1 It is common law that if an employee’s employment is terminated for whatever reason among other benefits outstanding leave days should be paid. The issue of outstanding leave days was never disputed by the Appellant…”

Respondent prayed that the appeal be dismissed.

The grounds of appeal and response thereto raise three (3) issues which shall be addressed ad seriatim.

A. Whether the award of 24 months’ wages as damages was wrong at law:

The Designated Agent (DA) opined as follows,

“My job is simple, to determine how much Radius Madaza should be paid as damages in

lieu of reinstatement. The Labour Court judgment used the word ‘Or’ meaning that one of the options directed by the Labour Court should be complied with and not both. Determination

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Having considered written and oral submissions by both parties, it is my determination that claimant be paid the following;

(a). Three months’ notice pay at US$292.58 per month

(b). Damages in lieu of reinstatement, 24 months’ salary

= US$ 877.74

=US$7,021.92

(c). Encashment of 25 leave days as ordered by Hon Vheremu in her determination = US$243.81 Total Claim                                                                                                        =US$8,143.47.”

Appellant claimed 24 months wages as damages for loss of employment. Respondent offered 3

months wages. The DA awarded 24 months wages. Regrettably he did not articulate the reasons why he awarded 24 months wages. The arbitrator failed to consider the issue of mitigation of damages as he was obliged to.

The circumstances of this case mirror those in the case of;

Delta v Murandu SC 38/15 Per Gwaunza DCJ

“Specifically he (arbitrator) did not consider whether or not the respondent made any effort to mitigate his loss, nor the economic environment prevailing in 2002 and the prospects, if any, that such environment offered in terms of alternative employment…

While ordinarily the remedy would have been for this court to remit the matter to the court a quo for the hearing of evidence on the factors requisite for a proper assessment of the damages in question, I take the view that this is not a proper case for such action…

I find, in the final analysis, and despite the fact that the court is in the dark as to what his age or health status was, nor how much experience he had garnered during his employment with the appellant, that the respondent did not prove a case for the 36 months damages awarded to him by the arbitrator.

I am satisfied on the basis of the factors considered above that an amount representing 6 months salary would have adequately compensated the respondent for the loss of his employment.”

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By parity of reasoning this Court considers that the award of 24 months wages as damages should similarly be reduced to 6 months wages. It would otherwise be inequitable to remit the matter to

the DA for a proper assessment of damages particularly considering that respondent was dismissed

by appellant 2 ½ years ago.

B. Whether the Designated Agent wrongly denominated his award in foreign currency:

The Court considers that this is really a non-issue. It is common cause that the currency regime in Zimbabwe is a basket of currencies including the local currency. The latter is legal tender in all transaction as set out by the Finance Act 2024 (No. 2) in section 25 which provides that;

“(6). The payment of ZIG notes and coins shall be legal tender in all transactions alongside

any other currency acceptable as legal tender as prescribed under section 44A.”

Therefore appellant is entitled to settle the DA’s award (as amended hereunder) in local currency at the appropriate exchange rate.

C. Whether the DA wrongly awarded leave pay:

Respondent claimed

25 leave days prior to dismissal                      243.81 31.5 leave days after dismissal                        276.25

The DA awarded the 1st claim and dismissed the 2nd. He was correct in doing so. Respondent was entitled to leave pays for leave not taken up to the date of his dismissal. After his dismissal respondent could not lawfully accrue any leave days.

Conclusion

In light of the foregoing analysis the respondent’s legitimate entitlements are recalculated as

follows;

1. Notice Pay	877-74

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2. Damages 3. Leave Pay

Total

1,755-48 243-81

US$2,877-03

Wherefore it is ordered that,

1. The appeal be and is partially allowed;

2. The determination dated 27 January 2025 issued by Designated Agent CT Dururu is set aside and substituted thus;

‘The Respondent shall pay the Claimant a sum of US 2, 877.03 together with interest

from date of dismissal, in respect of notice pay, leave pay and damages for loss of employment;’ and

3. Each party shall bear its own costs.

G. MUSARIRI

J-U-D-G-E

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