DISTRIBUTABLE
(42)
Judgment
No. SC 43/07
Civil
Appeal No. 168/06
HONGYU
ENTERPRISES v PHILLIP MAFOTI
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE,
JULY 2 & JANUARY 22, 2008
J
Mambara, for the appellant
The
respondent in person
ZIYAMBI JA: The respondent was dismissed from the
appellants employ on 26 July 2002. Following a series of appeals,
the Labour
Court, on 25 January 2005, ordered the appellant to
reinstate the respondent or alternatively pay damages, the quantum of
which
was to be agreed by the parties, failing which either party
could refer the issue to the Labour Court for quantification of the
damages due to the respondent.
It appears that the respondent fell ill some time after
his dismissal but it is common cause that the illness was not work
related.
The parties having failed to reach agreement on the
quantum of damages payable, the matter was placed before the Labour
Court for
quantification. The Labour Court gave its judgment on 9
June 2006 and made the following order
The agreed back pay and allowances in the sum of $9 404
328,40 be paid together with interest calculated at the prescribed
rate
on each amount as it fell due to the final date of payment.
Annual leave days for the period covered by the back
pay be paid together with interest at the prescribed rate calculated
from
January 2005 to the date of payment in full.
The matter is remitted to the employer to enable it to
calculate the sum that would have been payable to the applicant had
he
been retired on medical grounds as at January 2005. That amount
should be paid with interest calculated at the prescribed rate
from
1 February 2005 to the date of payment in full.
The appellant was aggrieved by para 3 of the order and,
with leave of the Labour Court, now appeals to this Court on the
grounds
that the learned President of the Labour Court misdirected
herself not only in ordering the appellant to pay to the respondent
damages calculated as if the latter was being retired on medical
grounds but in granting to the respondent a remedy which he had
not
sought. The remedy sought by the appellant on appeal was the
deletion of para 3 of the order.
The law relating to quantification of damages has been
clearly set out in decided cases. See, for example, Ambali
v Bata Shoe Co Ltd
1999 (1) ZLR 417 at 418H 419A, where it was stated as follows:
I think it is important that this Court should make
it clear, once and for all, that an employee who considers, whether
rightly
or wrongly, that he has been unjustly dismissed, is not
entitled to sit around and do nothing. He must look for alternative
employment.
If he does not, his damages will be reduced. He will be
compensated only for the period between his wrongful dismissal and
the
date when he could reasonably have expected to find alternative
employment.
The learned President of the Labour Court was cognizant
of the law in this regard and said at p 5 of the cyclostyled judgment
(No.
LC/H/66/2006):
The courts in previous cases have indicated that the
damages should be for the period it would have taken him to find
alternative
employment.
However she went on to say:
In this case however the finding of alternative
employment was out of the question since the applicant became ill
soon after
the illegal dismissal.
The damages that he suffered would therefore have been
what it would have cost the company to retire him on medical grounds.
That
figure in my opinion would correctly reflect the amount of
damages that he suffered. The court is not in a position to state
what
that figure could have been.
This is where the learned President of the Labour Court
misdirected herself. The issue for determination was the period
during
which the respondent could reasonably be expected to find
employment. It was for the court to determine that period based on
the
evidence before it and, having done so, to award the respondent a
figure which represented his salary for that period.
The Labour Act [Cap 28:01]
(the Act) makes provision for the remuneration by the employer
of employees who fall sick while in employment. There is
no such
provision for the remuneration of persons who fall sick after their
dismissal from employment. See s 14 of the Act.
There is, therefore, no legal basis for para 3 of
the order made by the Labour Court and the position is aggravated by
the
fact that the claim, notwithstanding its lack of any legal basis,
was raised by the court mero motu.
It is regrettable that because of the absence of any
evidence in the record as to the period it would have taken the
respondent
to obtain alternative employment, this Court is unable to
determine the matter. The respondent claimed 6 years salary without
leading any evidence to justify this claim. The appellant, taking
the view that the respondents claim was unjustified, offered
to
pay to the respondent, 6 months salary. This issue was not resolved
by the court a quo.
The matter must, therefore, be remitted to the court a
quo in order that an assessment of damages
can be done after hearing evidence and applying the correct legal
principles.
Accordingly the appeal succeeds.
Paragraph 3 of the Order of the Labour Court is
hereby set aside. The matter is remitted to the Labour Court for
assessment
of the period within which the respondent could not
reasonably have been expected to obtain employment and to make an
award of
damages based on that assessment.
No order of costs was asked for and none is made.
SANDURA JA: I agree
MALABA JA: I agree
J Mambara & Partners,
appellants legal practitioners
