Tendai Munetsi v ZB Financial Holdings Limited & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/355/25
HARARE 17 JUNE 2025
CASE NUMBER. LC/H/833/24
AND 30 SEPTEMBER 2025
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For Applicant: Mr. M. Gwisayi (Legal Practitioner)

For Respondent: Mr. K. Masasire (Legal Practitioner) CHIVIZHE, J:

This is an application for quantification of back pay and damages in lieu of reinstatement. The application has been filed pursuant to an order by this court handed down on 2nd February 2023 which order reads as follows:

The appeal succeeds with costs.

The misconduct determination of the Appeals Officer be and is hereby set aside and substituted with the following

The appeal succeeds with costs.

The appellant be and is hereby reinstated to his original position without loss of salaries and benefits from the date of unlawful dismissal, 23 March 2022.

Should reinstate of Appellant be no longer be tenable the parties shall agree on damages in lieu of reinstatement failing which either or both parties can approach this court for quantification of such damages in lieu of reinstatement.

The application is opposed.

BACKGROUND FACTS

The applicant was employed by the respondent as a property manager. The applicant was dismissed from employment on allegations of misconduct sometime in March of 2022. The applicant appealed to the appeals officer which upheld the decision of the disciplinary authority. Aggrieved by the findings of the internal appeals committee, the applicant lodged an appeal to this court challenging his dismissal by the respondent.

The appeal succeeded and the court handed down an order in the terms as indicated above. Following the hand down of the order there was an effort to engage in negotiations between the parties, the negotiations were however fruitless hence the present application.

APPLICATION TO PLACE FURTHER EVIDENCE IN THE RECORD

At the commencement of the oral hearing Mr Gwisayi, for the Applicant made an application for a document filed the previous day to be made part of the record. In making the application the Applicant was said to be relying on the provisions of Section 90A of the Labour Act [Chapter 28:01]. Mr Gwisayi submitted that considering the nature of the evidence contained in the document it was only just and fair for the document be allowed into the record.

The application was strenuously opposed by Mr Masasire, for the Respondent. He submitted that in terms of the Rule 26 Labour Court rules, 2017 no documents can be filed after pleadings had been closed, in this case Heads of Argument had been filed. He submitted that in this case Applicant could only be permitted to file any additional evidence upon an application first to the court for permission to file an Answering Affidavit explaining why it had not been possible for him to file the evidence as at the time of filing of pleadings. Mr Masasire emphasised that in this case no application having been made for filing of a supplementary affidavit, there was consequently no supplementary affidavit filed with the document intended to be filed. It was his view that the document filed in absence of the supplementary affidavit was irregularly filed. Mr Masasire also submitted that in any event the document had been filed the day before at 1630 pm. Upon perusal of the document, he had noted that reference had been made in the document to one of the Respondent Directors, Tanya Farmery. It had not been possible to verify with the same the correctness of the averments made in the document given the short notice. On this basis it was Respondent position that the application to place the document in the record had to be dismissed.

Mr Gwisayi, in reply, emphasised that on the basis of Section 90A the Labour Court is granted equitable jurisdiction to receive additional evidence either orally or in written form. There was no basis for the court to adopt strict application procedures in allowing the evidence. The evidence intended to be produced in this case had been placed before the court in light of omission of material evidence by the Respondent in the record. The Respondent had placed no evidence of the salary that the Appellant was entitled to receive during the tenure of the employment contract. There was no contract of employment drawn upon engagement of the Applicant contrary to the provisions of the Labour Act [Chapter 28:01]. The Respondent had flouted the provisions of Section 12 (2) and Section 12A (5) of the Labour Act as there was no evidence of salary in the form of salary slip. It was against this background that the Appellant intended to place before the court the additional evidence in order to help the court arrive at a correct determination on the issue of salary and other related issues. The Appellant was still praying for the indulgence of the court to have the evidence placed in the record. In dismissing the application, the court placed reliance of the purpose of Section 90A of the Labour Act [Chapter 28:01]. The section reads as follows;

90A Procedure and evidence in the Labour Court

The Labour Court shall not be bound by the strict rules of evidence, and the court may

ascertain any relevant fact by any means which the presiding officer things fit and which is not unfair or unjust to either party.

Evidence may be adduced orally or in writing in any proceedings in the Labour Court, at the discretion of the presiding officer.

The parties or their representatives to any proceedings in the Labour Court shall be entitled to question or cross-examine each other or any witness.

The section, as indicated above as outlines how the Labour court operates in practice, including the rules of evidence it is mandated to follow in hearing and determining labour related disputes. The nature of the evidence that can be presented before the court include witness testimonies, documents and other forms of proof relevant to the case. Most importantly however the section has granted the Labour court special powers to ensure efficient and effective resolution of labour matters. The court can under this section receive evidence without following strict rules of evidence that are otherwise applicable in the other courts such as the High Court, Supreme Court, etc.

The court whilst conceding that it has wide equitable jurisdiction to receive any additional evidence however noted that there was a basic requirement to have such additional

evidence placed before the court. A party still has to follow the provisions of Rule 26 (6) of the Court Rules. The rule provides as follows;

26(6) after the heads of argument have been lodged with the Registrar, no further papers may be lodged without leave of the court

This essentially means that a party has to at least make an application to file supplementary affidavit explaining its need to place additional evidence before the court. This is in order for the court and the other party to be made aware. The other party must also be able to respond and comment on the evidence intended to be placed before the court. Section 90A is intended to enable the court to obtain all the information relevant to the case, even at a late stage. This is to enable the court to make a proper and informed decision. It is however not intended to allow a party to take advantage of the other party by dumping evidence into the record of proceedings. In this case Appellant would have initially filed an application to file a supplementary affidavit, explaining the nature of evidence intended to be placed before the court, explaining why it had not been possible to file the evidence with the main pleadings, any other relevant information. The Respondent would thereafter be granted an opportunity to respond to the issues. The court would thereafter be in a position to make an informed decision on the matter. The Applicant having clearly failed to take these procedural steps prior to filing of the evidence it was fair and just to dismiss his application. The court also noted that as the document had been filed the previous day it amounted to ambushing the Respondent. It was on this basis the application was dismissed. After dismissing the application the Applicant was granted an opportunity to indicate whether he still intended to place the evidence before the court but in a procedurally correct manner. The Applicant took the option to abandon the evidence and proceed with the evidence already placed in the record of proceedings.

SUBMISSIONS BY BOTH PARTIES

The appellant argued that he had correctly made a claim for back pay in both the USD and ZWG currency and that the evidence that was being adduced by the respondent that he was being paid in the ZWG currency was not sufficient and neither was it relevant. The applicant further submitted that the essence of the order by the court was that he was entitled to be paid back pay as retrospectivity was implied. The applicant further argued that the respondent had an obligation to maintain details pertaining to remuneration on the basis of section 12 of the Labour Act and such failure by the respondent to divulge such details meant that adverse

inferences would be drawn. The applicant added that he was entitled to the annual bonus that is awarded to all employees at the end of the year.

The applicant also submitted that the position of the law is clear that any employee who considers that his employment has been terminated unlawfully or wrongfully should look for alternative employment to mitigate his loss without delay. The applicant submission was that he had attempted to find employment but had failed to find alternative employment. Evidence of the letters and responses were attached to his papers. He further argued that these justified damages of 48 months’ salary.

The applicant argued that the respondent failed to justify why he could not reinstate the applicant and that there was no evidence that the employment relationship had become untenable or had irretrievably broken down.

Per contra, the respondent argued that the relationship with the applicant had become untenable to such an extent that the respondent could not reinstate the applicant. The respondent further argued that he had lost the trust he had for the applicant and thus he could not reinstate him. The respondent added that there was no justification for the applicant to calculate damages using two currencies that is USD and ZWG. The respondent argued that the applicant was earning one salary component and that the claim of damages in USD was unjustified.

The respondent further argued that the applicant was not entitled to bonus as bonus is at the discretion of the employer and is based on the performance of the employee. The respondent further added that the claim for damages for 48 months was mischievous and unreasonable. The respondent argued that the applicant had not mitigated his loss at all and that the two applications made by the applicant seeking alternative employment were not sufficient to show efforts to seek alternative employment.

ISSUES FOR DETERMINATION

In light of the above submissions, the following issues arise for determination:

Whether or not the applicant has the onus to prove every claim?

Whether or not the applicant has justified the dual component salary?

Whether the Applicant is entitled to back pay as a separate claim?

Whether the Applicant mitigated his damages?

Whether or not the applicant is entitled to bonus/leave?

THE LAW AND ITS APPLICATION TO THE FACTS

Whether or not the applicant has the onus to prove every claim?

It is clear that this matter being an application for quantification of damages, the onus is on the applicant to prove and establish each and every particular claim made in this application. The court places reliance on the position made by the Supreme Court in the case of First Mutual Life v Muzivi SC 9-07 wherein Cheda JA said the following:

“The suggestion that the employer failed or refused to furnish the Respondent with the appropriate salary scale suggest a wrong approach to the issue. It is the Respondent who had the onus to prove his claims.”

It follows that in this case, the applicant has the onus to prove all the claims made.

WHETHER OR NOT APPLICANT HAS JUSTIFIED THE CLAIM FOR A DUAL SALARY

At the centre of the dispute is the issue as to what was the Applicant’s salary. In his submissions Appellant indicated that he was earning a dual salary for the period March 2022 to February 2023. The salary was a total of USD 400.00 which was paid as USD 200.00 dollars in cash and the balance was payable in ZWL dollars at the prevailing rate on the date of payment. This latter amount was deposited into his bank account at the end of the month.

In oral submissions Appellant submitted that the USD 200.00 in cash was regularly paid to him by Ms Tanya Farmery who is one of the Respondent’s Directors. She is also the person who employed him initially as a caretaker at Palmer. It was common cause that the Respondent was a family owned business. They were in the business of lease and management of several properties. It was Applicant evidence that he had been personally engaged as a caretaker by Ms Farmery. It was a role he performed from his appointment in 2012. He was later promoted to the position of Property Manager in 2017. He was advised verbally of the promotion by Ms Farmery. His duties then changed to that of collecting rentals, delivering the collections personally to Ms Farmery, attending rent board meetings or any other duties as assigned to him by her. The Applicant also submitted that the USD component would normally be deducted by Ms Farmery from the rental collections taken to her home. He would give her the rentals collected; they would thereafter do the reconciliation. Afterwards he would be given his part monthly salary in USD cash. He would sign for the rentals delivered and also sign for the part

salary in a document which was personally kept by Ms Farmery. It was his evidence that he was never given a salary slip for the duration of his employment. He also would not receive any duplicate document indicating the rentals collected and tendered to Ms Farmery.

The Respondent, in counter, submitted that the applicant’s salary was one composite salary sounding in RTGS. It was the Respondent’s position that Applicant was earning $ 26 214.14 RTGS at the time of termination of the contact of employment. The Respondent disputes that the Applicant position had changed through promotion to that of Property Manager. The Applicant was only receiving a salary in RTGS, at no stage did he receive a salary in USD. The Respondent also disputed that Appellant part salary had been regularly deducted by Ms Farmery from rentals collected.

Through the evidence of the Respondent’s sole witness, a Mr Chinouriri, whose designation was given as one of the Respondent’s Directors, the Respondent sought to dispute the Applicant assertion that he was employed personally by Ms Farmery, that he would solely report to her, that he would receive part of his salary from her, that he had been promoted in 2017 to a Caretaker. In his evidence Mr Chinouriri, indicated he was solely responsible for salaries for all Respondent’s employees. The Applicant salary for the duration of the contract was based on the salary scale payable to someone in Applicant’s position under the Collective Bargaining Agreement for the Commercial Sectors. He was earning a basic salary based on that instrument. He was not earning a dual salary. Mr Chinouriri also submitted that Ms Farmery, as one of the Directors was responsible for collecting rentals for properties under her portfolio. She would thereafter forward the rentals collected to the central office for processing. He submitted that it would not have been possible for Ms Farmery to make any other payments out of the rentals collected as suggested in the absence of proper authorisation through a Board Resolution. Mr Chinouriri also disputed that Applicant had not been paid January/February salaries in 2022. He submitted that Applicant had been paid for those months. The only salary he had not been paid was for March 2022.The Appellant having been terminated in March 2022 the salary for that month had not gone through as his bank account was closed by the time the salary went through. Under cross examination he could not explain why the Respondent was not issuing salary slips as required at law. He however conceded that during the relevant period the Respondent would sometimes pay its employees’ salaries in cash. He however insisted that he would still have known if Ms Farmery had paid Applicant the additional 200USD in cash for any month.

The Applicant submitted that he got his salary in both the USD component and the RTGS component and the respondent argued that the applicant only received his salary in the RTGS component. The evidence provided in the record shows that the Applicant was receiving his salary in the RTGS component but this was at the equivalent of USD 226 per month. The Applicant did not provide any evidence to show that he was indeed getting his salary in both components and thus the evidence attached by the Respondent is sufficient. On the basis of this evidence the applicable salary rate in this case is USD$226. 00.

WHETHER THE APPLICANT IS ENTITLED TO BACKPAY AS A SEPARATE CLAIM

The applicant has made a claim for backpay for the period from March 2022 to February 2023 based on the dual salary of USD$400. The total claimed is for USD$6400. The principle of law was laid in Redstar Wholesalers vs Edmore Mabika SC52/05 that where the order of the court for reinstatement being with full pay and benefits is to have retrospective effect then a litigant is entitled to be paid backpay. It is clear, in casu, that retrospectivity is implied through the order of this court referred to supra.

The court has also found that the salary rate applicable was RTGS26 214.84 which translated to USD$226. The Applicant however in the oral proceedings insisted on being paid the amount of USD $3164 as tendered by the Respondent in negotiations. The Respondent position was that the letter written during negotiations on 21 May, 2024 was written on a ‘Without Prejudice’ basis it could not therefore be relied upon by the Applicant. The applicant did not agree with that position. The court in the exercise of its discretion has removed any privilege attaching to the ‘without prejudice’ communication as the court deems that the admissibility of such communication is essential in this case. This is in light of the Respondent’s clear breach of provisions in section 12A (5) of the Labour Act [Chapter 28:01] requiring an employer to retain records/particulars of employment including salary, benefits, leave, bonus, etc. The employer is also required to provide a salary statement which clearly Respondent has not done. See also the general discussion on the exceptional circumstances that may impinge on the application of the without prejudice rule in Kazingizi and Another vs Equity Properties HH797 of 2015.

WHETHER OR NOT APPLICANT HAS MITIGATED HIS DAMAGES

It is trite that an employee who has been unlawfully dismissed from employment must mitigate his damages by finding alternative employment as soon as possible. This issue was further clarified in Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 (S), wherein McNALLY JA at pp 418H-419D stated as follows:

“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. If he does not, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have been expected to find alternative employment. The figure may be adjusted upwards or downwards. If he could in the meanwhile have taken temporary or intermittent work, his compensation will be reduced. If the alternative work he finds is less well-paid his compensation will be increased.”

The applicant argued that he had made an effort to find alternative employment but these efforts had been in vain. The applicant attached 2 application letters which indicated he had been rejected both times. The respondent argued that 2 times were not enough for someone who was looking for alternative employment.

The court held in Ambali supra as follows:

“It cannot be emphasised too strongly that this is wrong. There may be some confusion arising out of cases which deal with wrongful suspension rather than wrongful dismissal. Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S) is an example. But if an employee is wrongfully dismissed his duty to mitigate his loss arises immediately. If he is offered a good job the day after he is dismissed, he must take it, or forfeit any claim for damages. If he is offered a good job only after he has been unemployed for six months, he must take it. If in the meantime, he has instituted proceedings for reinstatement, he may continue them, but his claim for damages will usually then be limited to his loss over the six-month period.”

The applicant made an effort to find alternative employment but the effort was in vain. The applicant has not been able to secure alternative employment. What is clear is that the applicant did not just sit down and do nothing. The law in the case of Ambali is clear, the applicant is required to look for alternative employment and secure it. Taking into account the

personal circumstances of the Applicant such as his age, his qualification of an “O Level’’ certificate and the prevailing harsh economic factors in 2022 the applicant is entitled to damages in lieu of reinstatement for 18 months.

WHETHER OR NOT THE APPLICANT IS ENTITLED TO BONUS/LEAVE

The respondent argued that bonus is discretionary and thus the applicant had no right to claim it. It is trite that the grant of a benefit is at the discretion of the employer and thus cannot be interfered with. This position was reiterated in First Mutual Life Ltd v Muzivi, supra, where CHEDA JA stated as follows:

“Payment of an annual bonus, is generally discretionary on the part of the employer. It could not be said that the employee would have been awarded a bonus under all circumstances. A bonus would have depended on a clear record of performance. Having been suspended, it could not be said that the employee performed so well that he would have been entitled to a bonus.”

In the case of TM Supermarkets (Private) Limited v Nkomo and Anor SC 26/18 at page 6 the court in addressing the issue of bonus had the following to say:

A bonus is what can generally be termed a benefit. The implication that can be drawn is that the grant of a bonus per se is not illegal and an employer cannot generally be held to have committed an unfair labour practice by setting up a bonus scheme. The rationale to this principle is that every employee has the right to a performance-based incentive and if they work well, they will be paid well without any reference being made to their class, race, tribe or any other factor on the basis upon which discrimination can competently be committed. Thus, the grant of a performance-based bonus is therefore not proscribed by law.”

The above dictum amplifies the principle that the decision to grant or award a bonus to its employee is entirely within the employer’s discretion and is dependent on the employee’s performance. The Respondent in this case already made a concession to bonus for December 2022 in the amount of USD$400. A concession was also made to outstanding 30 leave days translating to USD$400. The Applicant is awarded both claims.

WHETHER OR NOT THE USD IS THE APPLICABLE CURRENCY FOR PAYMENT

The applicant submitted that part of his damages were to be payable in USD only. There has been no contract of employment produced in this case. Both parties concede that the payment of salary was generally by way of deposits of RTGS dollars and at the time of termination it was the equivalent of USD226. Respondent witness also conceded that sometimes employees were paid in USD cash. On this basis the court has for convenience relied on USD salary rate in order to calculate the damages payable rather than seek to calculate from RTGS to ZWL then to ZIG as suggested by the respondent. Section 4 of Statutory Instrument 33 of 19 to that extent provides as follows:

“4. (1) For the purposes of section 44C of the principal Act as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (‘the effective date’) -

that the Reserve Bank has, with effect from the effective date, issued an electronic currency called the RTGS Dollar;

that Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C(2) of the principal Act), immediately before the effective date, shall from the effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; and

that such currency shall be legal tender within Zimbabwe from the effective date; and

that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States Dollar; and

that after the effective date any variance from the opening parity rate shall be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States Dollar on a willing seller-buyer-basis ….”

The case of Zambezi Gas Zimbabwe (Private) Limited v N.R Barber (Private) Limited and Anor SC 3/20 interpreted this section as follows:

“Once a conversion of the value of an asset or liability denominated in United States dollars is made to the value of RTGS dollars, the converted value remains the same, as the two different currency denominations both carry value. No exchange rate can be applied as the judgment debt remains a judgment debt with a value after it is converted to the local currency. The RTGS dollar has the value given under the one-to-one rate and it remains on that value even after the effective date. The first respondent and likewise the court a quo was wrong at law in trying to find parity by adding value on

the RTGS dollar through the interbank rate. Section 4(1) (d) of S.I. 33/19 states that for such sui generis liabilities, including judgment debts, a rate of one-to-one between the United States dollar and the RTGS dollar will apply. The transactions entered into after the effective date would fall under the provisions of section 4(1) (e) of S.I. 33/19.”

It is clear in this case the liability fell after the effective date of 22 February, 2019 therefore in light of the Zambezi Gas case, the applicant cannot be paid damages in USD

. The damages may be expressed in USD but shall be payable at the prevailing bank rate in the ZIG currency.

The following damages are thus payable to the applicant:

Back pay	USD$ 3164

Damages in lieu of reinstatement USD$4068

Outstanding leave days	USD$ 400

Bonus	USD$400

TOTAL	USD$8032

DISPOSITION

The application for quantification be and is hereby granted.

The Respondent is to pay the Applicant USD$8032 at the prevailing interbank rate on the date of payment.

There will be no order as to costs.