Wesley Zunga v Diamond Mining Corporation

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/374/2016
HARARE, 8 MARCH 2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/374/2016

HARARE, 8 MARCH 2016			          	       CASE NO. LC/H/APP/1400/15

AND 10 JUNE 2016

In the matter between:-

WESLEY ZUNGA								Applicant

And

DIAMOND MINING CORPORATION					Respondent

Before The Honourable F.C. Maxwell, Judge

For Applicant		Mr I. Gonese (Legal Practitioner)

For Respondent		Mr N.M. Phiri (Legal Practitioner)

MAXWELL, J

On 19 December 2014 judgment was handed down in favour of applicant.  Respondent sought leave to appeal to the Supreme Court which application was dismissed on 24 July 2015.  On 20 November 2015 applicant filed an application for quantification of damages which is the subject of this judgment.

Applicant stated on affidavit that the salaries and benefits are not in dispute and should be used to calculate the back pay and benefits from April 2013 to December 2014 being date of dismissal and date of award respectively.  Applicant is claiming a total of 21 months.  Applicant also claims annual bonus, cash in lieu of leave, cash in lieu of notice and damages in lieu of reinstatement.

Respondent disputed applicant’s entitlement to 21 months pay.  It was submitted for respondent that applicant was on a fixed term contract with only two months left for it to expire.  In light of that, respondent denies applicant’s entitlement to cash in lieu of notice and cash in lieu of leave.  Respondent prayed for the dismissal of the applicant’s claim.

Before dealing with the quantum of damages, it is essential to establish the nature of contract between the parties.  Applicant claimed that he was employed on a contract without limit of time.  Respondent claimed that a fixed term contract was in existence.  One would have expected respondent to furnish the Court with a copy of the fixed term contract.  It is trite that he who asserts must prove.  See Astra Industries Ltd v Peter Chamburuka SC 27/12.  Ordinarily a company would keep records of such contracts and therefore if it was in existence respondent would have been expected to produce it together with the response to the quantification.  In the absence of that, I find that applicant was on a contract without limit of time.  Counsel for respondent had undertaken to file supplementary submissions with proof of the fixed term contract.  No supplementary submissions were filed within the time allowed by the Court.

I will proceed to deal with the various damages claimed.

Back pay

Respondent had disputed applicant’s entitlement to backpay on the basis that a fixed term contract was in existence.  In the absence of proof of the same, applicant’s entitlement is confirmed.  Respondent did not put in issue the gross salary of $700 that applicant claimed.  I find that applicant is entitled to a total of twenty months as the termination was on 16 April 2013 and the reinstatement was ordered on 19 December 2014.  The total amount is therefore 20 x $700	=	$14 000.00.

Cash in lieu of leave

Respondent claimed that this was paid with terminal benefits but no proof of such payment was produced.  In the absence of proof to the contrary applicant is entitled to the 2 months he claimed.  The total is therefore $700 x 2 = $1400.00.

Cash in lieu of notice

In the event of respondent terminating the contract of employment, applicant would have been entitled to 3 months notice in terms of section 12 (4) (a) of the Labour Act [Chapter 28:01] applicant is therefore entitled to 3 x $700 = $2 100.00.

Damages in lieu of reinstatement

It is trite that a person who has been dismissed from employment must mitigate his loss.  See Fokoseni v Lobels Bakery SC 20/04.  Applicant stated on affidavit that he sought for alternative employment to no avail.  He cited companies he sought employment from.  He is claiming damages in lieu of reinstatement of 3 years.  Respondent’s counsel did not address the issue of mitigating loss and did not challenge the submissions of the applicant.  In the case of Geoffrey Nyaguse v Mkwasine Estates SC 34/2000 it was held that the onus is on the employer to show that the employee has or should have earned an income from some other source.  The onus was not discharged in this case therefore applicant is entitled to the period claimed.  The total for damages in lieu of reinstatement is therefore 36 x $700 = $25200.00

Annual Bonus

Applicant is claiming annual bonuses for 2013 and 2014.  It is trite that bonus is discretionary.  As such it is not a right that applicant can claim.  I therefore disallow the claim for bonus.

In the final analysis applicant is entitled to the following

Back pay					$14 000.00

Cash in lieu of leave				$  1 400.00

Cash in lieu of notice			$  2 100.00

Damages in lieu of reinstatement		$25 200.00

Total 						$42 700.00

The following order is therefore appropriate.

The application be and is hereby granted with costs.

The respondent be and is hereby ordered to pay applicant a total of

$42 700.00 together with interest at the prescribed rate.

Muvingi Mugadza, applicant’s legal practitioners

Magodora Gonese & Partners, respondent’s legal practitioners