Judgment No SC 102/04

Civil Appeal No 351/03

PHIBEON CHAWATAMA v UNITED TOURING COMPANY

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, GWAUNZA JA & MALABA JA

HARARE SEPTEMBER 7 &

The appellant in person

C.C. Mudara, for the respondent

CHIDYAUSIKU CJ: The appellant was an employee of the respondent at the relevant time. He was dismissed from the respondent’s employ for gross incompetence or inefficiency in the performance of his work and, secondly, of gross negligence. This was in terms of the code of conduct for the industry concerned, Statutory Instrument 94/1995.

The appellant challenged his dismissal in the court a quo and the court made a finding that the facts pertaining to the charges the appellant was facing did not amount to gross negligence warranting dismissal.

The respondent was ordered to reinstate the appellant to his original position without loss of salary and benefits with effect from the date of dismissal and that if reinstatement was no longer possible, the respondent was ordered to pay the appellant the quantum of damages which was to be agreed to by both parties, failure of which either party would approach the Tribunal for quantification. The respondent advised that reinstatement was no longer possible and sought dialogue with the appellant. The quantum of damages was not agreed upon and consequently the parties approached the court a quo for quantification.

The Labour Court therefore made an order for damages that were to be paid to the appellant by the respondent. The order reads as follows:-

“WHEREUPON, after reading documents filed of record and hearing appellant and counsel for respondent:

IT IS ORDERED

1. That the respondent shall pay the appellant as follows:

a) backpay = $404 980. 72

b) damage = $ 94 350. 00

$499 330. 72

2. That the said sum of $499 330.72 shall be paid together with interest at the prescribed rate from the date of this order i.e. 14 October 2003, to the payment in full.

3. That there be no order as to costs.”

The appellant now appeals against this order upon the following grounds:

“1. The learned Senior President erred at law in failing to properly consider and reconcile the time and circumstances under which the judgment and the order were issued in the quantification of the damages due to the appellant. The judgment, having been handed down on the 4^th October 2001, the order was only granted on the 14^th October 2003, more than two years later.

2. The court a quo misdirected itself in the quantification process by awarding damages as of 2001 instead of assessing the same as of 2003.

3. No consideration of the inordinate delay in the finalization of the matter was made by the court a quo given the fact that this was not attributed to the appellant.

4. The court a quo erred in that it failed to take into consideration the personal circumstances of the appellant, particularly financial loss and hardships occasioned by the unlawful dismissal by the respondent since January 1998.

5. Considering the long period of appellant’s employment and the said judgment, it is difficult to reconcile an award of damages in the sum stated in the order.

6. The court a quo ought to have exercised its discretion and award damages which take into account the time involved, inflation and financial loss suffered by the appellant.”

It is quite apparent from the notice of appeal that there is no point of law that has been raised by the appellant. In terms of s 92(d) of the Labour Relations Act an appeal to this Court from the Labour Court can only be on a point of law and no point of law is raised either in this notice of appeal or in the heads of argument filed in this Court. All that the appellant is seeking is a recalculation of the damages by the court a quo.

As this appeal does not raise any point of law it therefore is not properly before us and is, accordingly, struck off the roll with costs.

GWAUNZA JA: I agree

MALABA JA: I agree

H. Chitapi Associates, respondent's legal practitioners