No S.C. 87\2002
Appeal No 248\1001
UNITED PASSENGER COMPANY v RICHARD CHRISTOPHER
COURT OF ZIMBABWE
JA, ZIYAMBI JA & MALABA JA
SEPTEMBER 16 & NOVEMBER 13, 2002
for the appellant
JA: This is an appeal against the quantum of damages in lieu of
reinstatement awarded to the respondent (Daison)
by the Labour
Relations Tribunal (the Tribunal).
salient facts are as follows. Daison was employed by the appellant
(Zupco) as a motor mechanic. He was charged with
an act of
misconduct and was found guilty and dismissed in terms of Zupcos
Code of Conduct on 23 April 1997.
appealed to the Tribunal in terms of s 101(7)(a) of the Labour
Relations Act [Chapter 28:01] (the Act) and was successful.
On 9 April 2001 the Tribunal ordered as follows:-
the appeal be and is hereby allowed with costs.
the respondent (Zupco) be and is hereby ordered to reinstate the
appellant (Daison) with no loss of salary or benefits.
in the event that reinstatement is no longer an option, the
respondent be and is hereby ordered to pay the appellant damages
lieu of reinstatement, the quantum of which the parties may agree
upon, failure of which either party may approach the Tribunal
parties subsequently failed to agree on the quantum of the damages,
Daison approached the Tribunal and, on 10 July 2001,
appeared before the Tribunal for the quantification of the damages.
Thereafter, on 1 August 2001, the Tribunal ordered
Zupco to pay to
his salary and benefits for a period of forty eight months.
Aggrieved by that decision, Zupco appealed to this Court.
first issue which I must deal with is whether this appeal raises any
question of law. The issue is important because in terms
of s 92(2)
of the Act an appeal from the Tribunal lies to this Court only on a
question of law.
Since this is
an appeal against the quantum of damages awarded by the Tribunal, the
issue is whether a ruling by the Tribunal on such
a matter involves a
question of law. That issue was considered by this Court in Leopard
Rock Hotel Company (Pvt) Ltd v Van Beek
2000 (1) ZLR 251 (S). At 256B-C, McNALLY JA said the following:-
ruling by the Tribunal on damages is a ruling on fact and thus not
appealable unless it can be categorised as wholly unreasonable.
This may (but not must) be the situation where the Tribunal has
misdirected itself on the law as to the criteria to be taken into
account in assessing damages.
Chiriseri & Anor v Plan International
S-56-2002 (not yet reported); and Kuda
Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine
S-63-2002 (not yet reported).
I must now
consider whether the Tribunals decision in this case can be
categorised as wholly unreasonable. One of the grounds
set out by Zupco in its notice of appeal reads as follows:-
were no facts upon which the Tribunals assessment of a period of
48 months could reasonably be based.
That, in my
view, amounts to alleging that the Tribunals decision is wholly
unreasonable. That allegation was based upon the
fact that in its
judgment the Tribunal did not say why it chose the period of
forty-eight months as opposed to any other period.
As stated in
v Mkwasine Estates (Pvt) Ltd
2000 (1) ZLR 571 (S) at 575D, if the Tribunal is forced to make an
estimate, it must use the information to hand, and not simply
figure from nowhere.
the circumstances, I am satisfied that the Tribunals decision can
be categorised as wholly unreasonable. The matter is,
properly before this Court.
now wish to deal with the main issue in this appeal, which is whether
the Tribunals order should stand.
Daison appeared before the Tribunal for the quantification of the
damages on 10 July 2001 he was not legally represented.
asked what his claim was and he said the following through an
pray that the court direct that the Company pays (me) from the date
of dismissal up to today (i.e. 10 July 2001).
further questioning, he stated that what he wanted paid were his
salary and benefits. He then enumerated the benefits which
thought he was entitled to, most of which were correctly rejected by
the hearing the Tribunal issued the following order:-
employer is therefore ordered to pay damages for loss of employment
employee his salary and benefits in terms of the contract of
employment for a period of 48 months. This should include his
salary which was agreed to be $4 112.68 per month, his employers
pension contribution to a pension scheme which was $189.90 per
his leave days, 13th
cheque if it was due to him in terms of his contract of employment
and any other benefits he was entitled to.
employer should also pay interest on each sum as it fell due at the
The sum of $2
500 earned at Kamunhu Service Station should be deducted. An amount
of $62,50 multiplied by 365 days (12 months that
he should have
vended (sic) to mitigate his losses) should also be deducted together
with his tax contributions and contributions
to NASSA and any other
lawful deductions in terms of his contract of employment.
respect, the Tribunals order was inappropriately worded, and is
not in the usual form.
already indicated, when Daison appeared before the Tribunal, he
claimed payment of his salary and benefits from the date of his
dismissal, which was 23 April 1997, to 10 July 2001, the date when
the Tribunal heard evidence on the quantum of damages in lieu
reinstatement, i.e. a period of fifty months and seventeen days.
is clear from that claim that Daison sought payment of a little more
than his back-pay and benefits. The real issue, therefore,
whether he was entitled to his back-pay and benefits. I think he
say so because on 9 April 2001 the Tribunal ordered Zupco to
reinstate him with no loss of salary or benefits, or pay him
damages in lieu of reinstatement.
my view, where an employee is reinstated with no loss of salary or
benefits his reinstatement is retrospective. If he
reinstated, but is paid damages in lieu of reinstatement, those
damages must include his back-pay and benefits.
Court stated in Chegutu
Municipality v Manyora
1996 (1) ZLR 262 (S) at 268A-B:-
word reinstate or reinstatement carries
no automatic retrospective connotation, either in ordinary language
or in our legislation. Normally it means simply that the person
concerned will be placed again in his/her former job. If
retrospectivity is intended, one would normally look for additional
such as with effect from the date of dismissal or with
effect from (a particular date in the past) or with back-pay
and all benefits from
one applies that test to the order of reinstatement issued by the
Tribunal in this case, it is clear beyond doubt that retrospectivity
was intended. A contrary interpretation of the Tribunals order
would mean that if reinstated Daison would lose the salary and
benefits he had already earned, which would be contrary to the
specific provisions of the order.
the case, it follows that the damages payable in lieu of
reinstatement must include back-pay and benefits. As I stated
Madyara v Globe & Phoenix Industries (Pvt) Ltd t/a Ran Mine,
at p 5 of the cyclostyled judgment:-
far as back-pay and benefits are concerned, there is no cogent reason
between an employee who is reinstated and one who is not, where the
order of reinstatement has a retrospective effect. In my view,
of them are entitled to back-pay and benefits. The only difference
between them is that one gets his job back whilst the other
damages for the premature termination of his employment contract.
the circumstances, Daison is entitled to net back-pay and benefits
from the date of his dismissal, being 23 April 1997, to 9
the date when the Tribunal ordered that he be reinstated or paid
damages in lieu of reinstatement. The claim in respect
period between 9 April 2001 and 10 July 2001, when the Tribunal heard
evidence on the quantum of damages, cannot be granted
as Daison laid
no basis for it. In addition, it is pertinent to note that Daison
made no claim in respect of the premature termination
that, I would like to consider the three benefits which the Tribunal
thought Daison was entitled to. The first benefit
mentioned in the
Tribunals order is Zupcos contribution to a pension scheme in
the sum of $189.90. This benefit does not
appear in Daisons
employment contract, and there is no indication of where that figure
came from. In my view, the Tribunal must
have mistaken it for the
sum of $189.90 which appears on the Time and Wage Register as a
deduction from Daisons salary in respect
of his medical aid
contribution. The benefit was, therefore, not proved.
benefit mentioned in the order is annual bonus. This benefit
appears in Daisons employment contract but was payable
discretion. It was not an entitlement.
benefit which the Tribunal found established was annual leave. This
appears in the contract of employment, which indicates
was entitled to twenty-four days leave annually. He is,
therefore, entitled to cash in lieu of leave in respect
of the period
from 23 April 1997 to 9 April 2001.
I now wish
to deal with the mitigation of damages. It is well established that
an employee who considers, whether rightly or wrongly,
that he has
been unlawfully dismissed, is not entitled to sit around and do
nothing. He must mitigate his damages by looking for
temporary employment when available. See, for example, Gauntlet
Security Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583 (S) at 586D-E; and Ambali
v Bata Shoe Co Ltd 1999
(1) ZLR 417 (S) at 419A-B.
burden of proof rests on the employer to show that the employee has,
or should have, earned an income from some other
v Mkwasine Estates (Pvt) Ltd, supra,
at 575C. In my view, apart from the sum of $2 500.00 which Daison
said he earned whilst temporarily employed by Kamunhu Bus Service,
Zupco failed to prove that Daison earned or ought to have earned an
income from some other source and the amount thereof. Daisons
evidence was that he looked for alternative employment but was
unsuccessful. There was no evidence to the contrary.
the circumstances, Daison is entitled to his net salary and cash in
lieu of leave from 23 April 1997 to 9 April 2001, minus the
sum of $2
500. In addition, he is entitled to interest at the prescribed rate
on the sum payable to him from 9 April 2001 to the
date of payment in
full. The net salary will be his gross salary minus the income tax
payable by him, his contribution to the National
Social Security Fund
and any government levy payable by him during the relevant period.
this Court is not in a position to calculate the sum payable by Zupco
because the record does not have the necessary
example, whilst the record shows that in April 1997 Daisons gross
salary was $4 112.68, there is no evidence indicating
what it was
during the rest of the period in question. It is, therefore,
necessary to remit the matter to the Tribunal to enable
calculate the sum to be paid by Zupco, after any evidence relating to
Daisons salary, income tax, contribution to the National
Security Fund and any government levy payable by him during the
relevant period is led.
the circumstances, the following order is made:
appeal is allowed with no order as to costs.
order issued by the Tribunal is set aside.
matter is remitted to the Tribunal to enable it to calculate the sum
payable to Daison in accordance with the principles set
out in this
judgment after the relevant evidence is led by the parties.
ZIYAMBI JA: I agree
MALABA JA: I agree
appellant's legal practitioners