Zimsafe (Pvt) Limited V D Chimuti & 16 ORS

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/375/2016
HARARE, 16 FEBRUARY 2016 &
CASE NO LC/H/663/2015
10 JUNE 2016
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/375/2016

HARARE, 16 FEBRUARY 2016 &			                CASE NO LC/H/663/2015

10 JUNE 2016

In the matter between

ZIMSAFE (PVT) LIMITED						APPELLANT

Versus

D CHIMUTI & 16 ORS							RESPONDENTS

Before the Honourable B S Chidziva J

For the Appellant      R Zimudzi  (Legal Practitioner)

For the Respondent   Ms P Kashiri (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of Honourable Arbitrator Ms S Changawa dated 26 September 2014.

The brief background of this matter is that the seventeen respondents were employed by the applicant in different capacities and earning different salaries. The respondents referred the matter of unfair dismissal and outstanding salaries for arbitration. The arbitrator made a determination to the effect that the respondents were:

Unlawfully dismissed;

Are owed outstanding salaries; and

Must be paid six months salaries for damages.

The appellant aggrieved by the decision has noted the present appeal on the following grounds:

The Honourable Arbitrator erred by making a finding that the respondents were unlawfully dismissed in the circumstances where there was no evidence to the effect that the respondents were dismissed at all.

The Honourable Arbitrator erred at law by awarding damages without any evidence substantiating the same.

The Honourable Arbitrator erred at law and fact by failing to consider the fact that the respondents’ claim for the period 2011 to 9 March 2012 were prescribed.

The appellant therefore prayed that the arbitral award should be set aside.

The respondents in response told the court that:

The arbitrator correctly found that the respondents were unlawfully dismissed.

There was evidence provided regarding the damages.

The arbitrator gave reasons for the award.

The dispute had not prescribed as it was on going.

The respondents on these grounds prayed that the appeal should be dismissed.

The issues to be decided are:

The arbitrator erred in making a finding that the respondents had been unfairly dismissed.

Whether or not the arbitrator awarded damages without substantiating them.

Whether the arbitrator merely rubber stamped the respondents’ claims without any justification.

Whether the arbitrator erred by dismissing the issue of prescription raised by the appellant.

The appellant is disputing that the respondents were unfairly dismissed. The chronology of events given by the respondents is that:

An internal memo on 12 December 2013 informed the respondents that the company was facing financial challenges and as such they were to report for duty on 4 March 2014.

When they reported for duty on 4 March 2014 they were turned away and were informed that they had been dismissed.

The appellant admitted that they were facing financial problems.

In view of the fact that the appellant was facing financial problems it should have followed retrenchment laws as provided by section 12 C and 12 D of the Labour Act. Section 2 of the Labour Act has also defined retrenchment as follows:

“Terminate the employee’s employment for the purpose of reducing expenditure or costs, adapting to technological change, reorganizing the undertaking in which the employee is employed, or for similar reasons, and includes the termination of employment on account of the closure of the enterprise in which the employee is employed.”

If the respondents simply abandoned their duties and only came to report for duty after three months then they should have been disciplined under the company’s Code of Conduct as provided for under section 12 B (2) of the Labour Act.

In the absence of all this the arbitrator was not wrong by finding that the respondents were unfairly dismissed.

The appellant has also argued that there was no proof of damages by the respondent. However when the respondents appeared before the arbitrator they prayed for salary arrears and six months’ salary and benefits as damages. They submitted that they had not received salaries for one and a half years. They submitted a schedule of the moneys owed to them but the appellant failed to produce payslips showing that the respondents had been paid their salaries and benefits. Damages in the case of Leopard Rock Hotel Company Pvt) Ltd v Van Beek 2000 (1) ZLR 251 were defined as follows:

“Back-pay is thus a concept associated with reinstatement. If an employee is reinstated she will normally be awarded back-pay. If she succeeds in proving wrongful dismissal but is not reinstated, she will be entitled to damages a major element of which will be back-pay. Perhaps more correctly one should say the damages will be assessed by reference to the back-pay lost. But here the back-pay will be limited to a period from the date of the wrongful dismissal to a date by which she could with reasonable diligence have obtained alternative employment.”

The schedules submitted before the arbitrator showed the back-pay that the respondents were owed by the appellant.

However the arbitrator did not show how she came up with the period of six months as damages. George Markings 2007 3rd ed at page 63 has stated how the damages can be quantified as follows:

“The basis to quantify damages is what is a reasonable period for the aggrieved employee to have found alternative employment. In determining this, one would look at his employability, the employment market what efforts if any he has made to find employment, what employment agencies he has registered with, what sort of jobs he has been looking for, whether his expectations are so unrealistic as to were he will never be employed, what if anything the employer has done to assist (or hinder) him in his efforts to find a position and so on.”

For this reason I will refer the matter back to the arbitrator to lead evidence from the respondents or to show how he came up with the period of six (6) months’ salary as damages.

On the issue of prescription section 94 (2) of the Labour Act states that:

“Prescription of disputes shall not apply to an unfair Labour Practice which is continuing at the time it is referred to or comes to the attention of the Labour Officer.”

The respondents were not fully paid for a continuing period from 2011 to 2014. The matter was taken to the labour officer on 10 March 2014 after being turned away on 4 March 2014. The unfair labour practice was still continuing and only came to a climax when they had been turned away from work.

In view of this therefore the arbitrator did not err when he found that the unfair labour practice had not prescribed.

To that end therefore this court orders as follows:

The respondents were unlawfully dismissed.

The appellants should pay the respondents the outstanding salaries and benefits amounting to $145 856-30.

The matter is referred back to the arbitrator to lead evidence to justify the time period for damages.

The appellant shall pay the costs.

Zimudzi & Associates, appellant’s legal practitioners

Thondhlanga & Associates, respondent’s legal practitioners