The Heritage School v Monica Seka & 3 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/145/13
HELD AT HARARE 23RD OCTOBER 2012
CASE NO
JUDGMENT NO LC/H/145/13
---------




IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/145/13

HELD AT HARARE 23RD OCTOBER 2012	   CASE NO LC/H/677/11

THE HERITAGE SCHOOL				Appellant

MONICA SEKA					1st Respondent

NEVIAS CHIBANDA				2nd Respondent

ANYWAY KAZINGACHIRE			3rd Respondent

CHIRATIDZO NDOWA				4th Respondent

Before The Honourable G Musariri, President

For Appellant		Mr O Matizanadzo, Attorney

For Respondents		Mr K Gama, Attorney

MUSARIRI, G:

On 29th April 2010 the Honourable Y Malama made an arbitration award.  In terms thereof she ordered Appellant to either reinstate Respondents in its employ or pay them damages for loss of employment.  Honourable Malama made a 2nd award in terms of which she ordered Appellant to pay each Respondent an amount of US$12 065.80 as damages in lieu of reinstatement.

Appellant then appealed to this Court against the 2nd award.  The heart of Appellant’s case was that:

Respondents were not entitled to back-pay from the date of dismissal to

date of the reinstatement order as they had an obligation to mitigate their damages.

Respondents were not entitled to payment in the US Dollar rates used.

The Arbitrator erred in awarding an equivalent of 10 months’ salary as damages.

The Arbitrator erred in awarding amounts to cover petrol and medical aid benefits.

Most of the issues raised by Appellant have been conclusively answered by case-law authority.  In the matter of

Redstar Wholesalers v Mabika SC 52/05 the Honourable Ziyambi JA stated, at p4, that:

“It has been decided by this Court that the relevant date, namely the date to which back-pay should be payable is the date on which the order of reinstatement is made.”

The same point had been made in the case of

Zupco v Daison 2002 (2) ZLR 628 (S) where Sandura JA (as he then was) ruled, at p632 D,  that,

“In the circumstances, Daison is entitled to net back-pay and benefits from the date of his dismissal, being 23 April 1997, to 9 April 2001, the date when the Tribunal ordered that he be reinstated or paid damages in lieu of reinstatement.”

Accordingly Respondents were entitled to back-pay from the date of their dismissal up to the date of the reinstatement order (1st arbitration award).

In the matter of:

VIP Sport v Kanyoza SC 69/06 the Honourable Sandura JA, at p3, stated that,

“In addition, the Labour Court quantified the damages on the basis of the

salary  payable to a Grade 13 employee on 26 August 2005, the date when the Labour Court assessed damages.  This was clearly wrong because assuming that Kanyoza had been a Grade 13 employee, the damages for premature termination of his employment should have been calculated on the basis of the salary payable to him on 31st August 2004, when the  Arbitrator ordered that he be reinstated…”

This shows that the rates used to calculate damages are those prevailing on the date of the reinstatement order.  In this case that date would be the 29th April 2010.  As of that date the US Dollar had been denominated as legal tender amongst a basket of currencies.  Thus Respondents were entitled to payment in US Dollars.

In the matter of

Leopard Rock v Beek 2000 (1) ZLR 251 McNally JA (as he then was) at p 256 B – C, stated that,

“A ruling by the Tribunal on damages is a ruling on fact and thus not appealable unless it can be categorised as wholly unreasonable.”

The Arbitrator awarded 10 months salary as damages for loss of employment.  The appropriate quantum depends on the circumstances of each case.  However precedents show that amounts generally range from ½ year to 3 years’ salary.  The award in casu leans more on the lower side.  It cannot be

said to be generous.  Neither can it be said to be “wholly unreasonable” as per the Leopard Rock quotation above.  Appellant was unable to persuade me on this point.

Appellant summarised its case to the Arbitrator in written form titled “Respondent’s Heads of Ergument (sic).”  Same is filed of record.  Nowhere in these Heads did Appellant query the claims related to petrol and medical aid benefits.  An Arbitrator is only required to adjudicate upon the case presented to him.  He is not required to fish for further issues not raised by the parties. That would amount to an improper descent into the arena.  Therefore he cannot be said to have erred on a point not put before him.

I therefore find no merit in all the points raised on behalf of Appellant.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT