Thomas Meda v Innscor Africa Bread Company Zimbabwe

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/145/2020
HARARE, 2 JULY 2019
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/145/2020

HARARE, 2 JULY 2019		                         CASE NO. LC/H/APP/189/19

AND 3 JULY 2020

In the matter between:-

THOMAS MEDA								Applicant

And

INNSCOR AFRICA BREAD COMPANY ZIMBABWE	 	Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr I. Simba (Trade Unionist)

For Respondent		Mr A. F. Bimha (Legal Practitioner)

CHIDZIVA, J:

This is an application for quantification of damages after this court’s order of 8 February 2019 in which this court ordered that the applicant be reinstated to his former position or that he be paid damages in lieu of reinstatement.

The brief facts of the matter is that the Applicant who was employed as a van salesman was dismissed from employment after a disciplinary hearing that was conducted in his absence. Upon appeal to this court his appeal was allowed.

The applicant’s claim is as follows,

Backpay 11 March 2015 to 8th February 2019

46 months x $576-00 = US$26 496-00.

90 leave days from the date of reinstatement

US$576-00 x 90 leave days = US$1 728-00.

Notice Pay

US$576-00 x 3 months = US$1 728-00.

Service Pay 1 February 2013 to 8 March 2019

US$576-00 divide by 2 = US$288-00 x 6 years = US$1728-00.

Damages for loss of employment

He submitted that he tried to mitigate the loss of employment by engaging in vending and that he earns $90-00 per month. He therefore calculated the damages as follows,

US$576-00 x 24 months = US$13824-00 damages less mitigated amount of $90-00 per month x 18 months = US$1 620-00.

Therefore US$13 824-00 - $1 620-00 = $15 444-00.

The applicant’s total claim is therefore $47 124-00.

In response the Respondent argued that

The Respondent is now called Innscor Africa Limited t/a Bakers Inn Bakeries.

The application is immature in view of the Respondent’s application for leave to appeal in case No. LC/H/166/19.

The claim for quantification is excessive as applicant should have mitigated his losses by looking for alternative employment since dismissal.

Applicant cannot claim backpay, service pay and damages in one claim as it would result in unjust enrichment.

It is common cause that,

This court made an order for reinstatement on payment of damages on 8 February 2019.

The application of quantification was made on 19 March 2019.

By 2 April 2019 when the Respondent filed heads of argument the Applicant had not been reinstated.  There was an application for eave to appeal to the Supreme Court under Case Number LC/H/166/19 which has since been dismissed by this court.

When the parties appeared before this court the Respondent indicated that they had since changed their name to Innscor Africa Limited t/a Bakers Inn Bakeries. The Applicant argued that the notice of response and heads of argument with a new name were a nullity at law.  In the case of Mcfoy v United Africa Co Ltd 1961 E ALL 1169 AT 1172 it was stated that,

“If an act is void it is in law but incurably bad … and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect to stay there. It will collapse.”

The Respondent knew the name that was used in the initial proceedings. There was no way they could just come up with a new name without an amendment. I agree with the Applicant’s submission that the (2) two documents were a nullity and they could not be amended. In the case of CT Bolts (Pvt) Ltd vs Works Committee SC 16/2012 it was held that a legal citation is the foundation of the legal case and failure to make the correct citation makes the proceedings null and void.  The Respondent is therefore not properly before this court. In this case the Respondents have admitted that they are the same persons with the Respondent who has been cited in this application. They have responded to the claim. I will therefore make an order with the original name that was cited by the Applicant which is “Innscor Africa Bread Company Zimbabwe”.

What is to be decided is whether or not the Applicant is entitled to the claim he has made.

Gubbay CJ in the case of Gauntlet Security Services (Pvt) Ltd v Leonard 19976 (1) ZLR 583 has outlined the principles to be followed in assessing damages as follows,

“The employee is entitled to be awarded the amount of wages or salary he would have earned save for the premature termination of his contract by the employer.  He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach …”

In the case of Chiriseri & Anor vs Plan International SC 56/02 the Supreme Court held that,

“where an order of reinstatement is retrospective in effect the damages to be paid in lieu of reinstatement include backpay and benefits”

In the case of Madhatter Mining Company vs Tapfuma SC 51/14 it was also held that the other factors to be considered in assessing damages include

“… the efforts taken by the respondent to mitigate his loss, whether or not such efforts yielded success and if so when that may have happened following the off of employment and how much the Respondent could have earned and so on.”

In this case the applicant indicated that he made efforts to mitigate loss by looking for employment.  He engaged himself in self-employment to mitigate the damages. The Applicant simply stated that he tried to mitigate his loss but no evidence was led to that effect. He has not led any evidence to help the court to assess the damages.

In the case of Triangle Limited v Phiri SC 107/04 it was held that,

“In making its assessment of the damages due, the Tribunal relied on submissions made by the respondent’s legal practitioner to the effect that the respondent had tried to mitigate his loss by seeking alternative employment without success. By relying on those submissions without having heard evidence to substantiate them, the Tribunal misdirected itself.”

This court cannot therefore rely on submissions in the heads of argument without any evidence from the applicant.

The applicant should have started looking for alternative employment from the time he was dismissed. He was dismissed from employment by the Appeals Committee on 1st August 2016.

The disciplinary committee dismissed him on 11th March 2015. This court made an order for reinstatement on 8th February 2019. By 2015 he was a holder of Ordinary Level. At the time of filing the application he was 55 years old.

In my view it should have taken the applicant about 18 months to secure alternative employment as from 11 March 2015. Therefore in so far as damages are concerned he is entitled to US$576-00 x 18 months.

He has claimed 90 days leave days from the period of reinstatement. Given the time he was suppose to secure alternative employment he is not entitled to any leave days. He is also not entitled to any notice pay.

In the case of Gauntlet Security Services (Pvt) Ltd vs Leonard 19976 (1) ZLR583 it was held that an employee can be compensated for the loss of any benefits to which he was “contractually” entitled and of which he was deprived in consequence of the breach.  The applicant has claimed service pay for the period 1st February 2013 to 8th March 2019. He has not adduced any evidence to prove that he was entitled to this contractual benefit. In the circumstances this claim is dismissed.

From the foregoing I order as follows,

Respondent is to pay damages of $576-00 x 18 months =            US$10 328-00.

The other claims be and are hereby dismissed.

The Respondent shall bear costs.

Honey & Blanckenberg, respondent’s legal practitioners