No. SC 63/02
Appeal No. 58/01
& PHOENIX INDUSTRIES (PRIVATE) LIMITED
t/a RAN MINE
COURT OF ZIMBABWE
JA, CHEDA JA & GWAUNZA AJA
JULY 8 & AUGUST 20, 2002
M Jakachira, for the
for the respondent
JA: The appellant in this matter appealed against the quantum of
the damages awarded to him by the Labour Relations Tribunal
Tribunal) as an alternative to his reinstatement as an employee of
background facts are as follows. The appellant was dismissed from
his job on 23 October 1996. He appealed to the Tribunal
terms of s 101(7) of the Labour Relations Act [Chapter 28:01]
(the Act) and, on 28 June 2000, the Tribunal ordered as
the respondent being in default, the appeal be and is hereby granted
2. That the
respondent be and is hereby ordered to reinstate the appellant
without any loss of salary or benefits with effect from
of October 1996, being the date of dismissal.
the appellant be and is hereby awarded damages in lieu of
reinstatement, the quantum of which is to be assessed by the
the amount is to be paid together with interest at the prescribed
rate of interest with effect from the date of dismissal.
the appellant was not reinstated, he approached the Tribunal for the
quantification of his damages and, on 9 February
Tribunal ordered the respondent to pay to him damages in lieu of
reinstatement in the sum of $162 674.63, together
and costs of suit. The respondent was again in default on that
with the quantum of damages awarded to him, the appellant appealed to
first issue to deal with is whether this appeal raises any question
of law because, in terms of s 92(2) of the Act, an
the Tribunal lies to this Court only on a question of law. A ruling
by the Tribunal on the quantum of damages is a
ruling on fact unless
it is wholly unreasonable.
McNALLY JA said in Leopard
Rock Hotel Company (Private) Limited v Van Beek
2000 (1) ZLR 251 (S) at 256 B-C:
A 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.
the present case, I have no doubt that in assessing the damages
payable to the appellant the Tribunal misdirected itself because
disallowed the appellants claim in respect of back-pay. The
matter is, therefore, properly before the Court.
sum of $162 674.63, which was awarded to the appellant, was
assessed on the basis that the period within which the appellant
could not reasonably have been expected to find alternative
employment was three years from the date of his dismissal. The sum
was made up as follows:
salary for three years: $134 156.76
bills: $5 067.87
TOTAL: $162 674.63
appellants claims for back-pay from October 1996 to July 2000 and
for underground allowances and water bills were disallowed.
addition, the amounts claimed by the appellant in respect of rentals
and electricity bills were reduced to the amounts shown
those were the amounts proved by documentary evidence.
appellants claims in respect of rentals, electricity and water
bills were based on the fact that before his dismissal the
was entitled to free accommodation, which included free water and
real issue in this appeal is whether, in addition to the sum awarded
to him as damages in lieu of reinstatement, the appellant
to back-pay and benefits from 23 October 1996, when he was
dismissed, to 28 June 2000, when the Tribunal ordered
that he be
reinstated or paid damages.
determining that issue, the starting point is the order issued by the
Tribunal on 28 June 2000, which I have already set
out at the
beginning of this judgment. The Tribunal ordered the respondent to
reinstate the appellant without any loss of salary
with effect from the 23rd
of October 1996 or, alternatively, pay him damages in lieu of
I commented on a similarly worded order in Oliver
Chiriseri and Anor v Plan International
SC-56-2002 (not yet reported). At p 6 of the cyclostyled
judgment I said:
is clear from the wording of the order that if the appellants had
been reinstated they would have been entitled to back-pay and
I say so because the order makes it clear that the
reinstatement is to have a retrospective effect.
this Court stated in Chegutu
Municipality v Manyora
1996 (1) ZLR 262 (S) at 268 A-B:
the 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 words 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
that test to the order of reinstatement issued by the labour
it is clear that retrospectivity was intended.
my view, where the order of reinstatement indicates that
retrospectivity was intended, the damages to be paid in lieu of
must include back-pay and benefits.
comments apply to the present case with equal force. As far as
back-pay and benefits are concerned, there is no cogent reason
distinguishing between an employee who is reinstated and one who is
not, where the order of reinstatement has a retrospective
In my view, both of them are entitled to back-pay and benefits. The
only difference between them is that one gets his
job back whilst the
other is paid damages for the premature termination of his employment
on the relationship between back-pay and damages, McNALLY JA
said the following in
Leopard Rock Hotel Company (Private) Limited v Van Beek supra
seems to me that back-pay and damages are indeed
different concepts, but only in the sense that damages is a
wider concept. It will normally include back-pay, but may include,
for example, compensation for loss of promotion prospects, interest,
and other elements as appropriate.
entirely agree with those comments.
on in the judgment the learned JUDGE OF APPEAL said the following at
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 wrongful dismissal to a
date by which she could, with reasonable
diligence, have obtained
I agree with those comments. However, the comment that the
back-pay will be limited to a period from the date of wrongful
dismissal to a date by which she could, with reasonable diligence,
have obtained alternative employment must be interpreted in
context of the facts of that case, which are set out at p 252 E-F
appellant (the hotel) employed Ms van Beek as a bookkeeper
from 7 June 1993 to 4 January 1995 on which date
suspended pending approval of her dismissal by a labour relations
was approved by the LRO and by a senior labour relations officer
(SLRO). The Labour Relations Tribunal (the
reversed their decisions and ordered reinstatement or damages. It
transpired that she had found alternative employment
in January 1997.
The Tribunal awarded her back-pay for twenty-four months which was
calculated (by consent) to be $287 138.89.
taking alternative employment in January 1997 Mrs van Beek,
instead of standing by her contract of employment and enforcing
rights against the hotel, elected to accept the repudiation of her
contract and terminated it. She could not, therefore, seek
reinstatement, but could only claim damages.
upon an employee who had elected to terminate his contract of service
by taking alternative employment whilst on suspension,
(as he then was) said the following in Zimbabwe
Sun Hotels (Private) Limited v Lawn
1988 (1) ZLR 143 (S) at 153 A-B:
I am inclined to go further and hold positively that the respondent
was shown on the probabilities to have elected to terminate
contract of service in reliance upon the appellants breach in
suspending him without pay. His remedy therefore lay in delict
not in contract, but I express no view as to whether or not he might
succeed in a claim for damages, since altogether different
considerations will apply.
my view, those comments apply with equal force to Mrs van Beek.
the circumstances, Mrs van Beeks position is very
different from that of an employee, like the present appellant,
has not elected to accept the repudiation of his contract of
employment, and in respect of whom the Tribunal has ordered
with effect from the date of dismissal with back-pay
and all benefits or, alternatively, damages. In my view, the
McNALLY JA would not apply to the calculation
of damages in lieu of reinstatement payable to such an employee.
leaving the issue of back-pay and benefits, I would like to clarify
this Courts decision in Ambali
v Bata Shoe Company Limited
1999 (1) ZLR 417 (S) (Ambalis second appeal), criticised by
counsel for the appellant in his heads of argument. Ambali was not
awarded back-pay and benefits for the period during which he was on
suspension for the simple reason that the order of reinstatement
issued in his favour did not have a retrospective effect. It simply
stated that Ambali was to be reinstated. It did not say that
to be reinstated with effect from the date of suspension or
with back-pay and all benefits. See Charles
Ambali v Bata Shoe Company Limited
SC-100-98 (not reported) at p 2 of the cyclostyled judgment
(Ambalis first appeal).
said that, I would like to consider the benefits to which the present
appellant was entitled, in addition to his salary.
They were two.
first benefit was an underground allowance. In terms of clause 20
of the Collective Bargaining Agreement: Mining Industry
Conditions) 1990, published in Statutory Instrument 152 of 1990, the
appellant, being an employee working underground, was
entitled to an
underground allowance equal to three per centum of his basic salary.
Had he not been unlawfully dismissed, that
allowance would have been
paid to him every month. He is, therefore, entitled to it from
23 October 1996, the date of his
dismissal, to 28 June
2000, when the Tribunal ordered the respondent to reinstate him
without loss of salary or benefits with
effect from the date of
dismissal. The fact that during that period he was not working
underground is irrelevant, because he had
been unlawfully prevented
from working by the respondent.
second benefit to which the appellant was entitled was free
accommodation, which included free water and electricity. In this
regard, the appellant ought to have produced evidence showing how
much it cost him to rent a house of the same standard as the one
which had been provided to him free of charge, and the cost of water
and electricity incurred whilst occupying such a house during
relevant period. Regrettably, no such evidence was produced, apart
from receipts showing that during the relevant period the
paid rentals totalling $23 450.00, and electricity bills
totalling $5 067.87.
as the two amounts have not been challenged on appeal, there is no
basis for interfering with the Tribunals awards in
respect of the
costs of alternative accommodation and electricity. No documentary
evidence was produced in respect of the water
consumed during the
relevant period. The appellant was not, therefore, entitled to any
award in that respect.
now wish to deal with the mitigation of damages. It is well
established that an employee who considers that he has been dismissed
unlawfully should mitigate his damages by taking temporary
employment. See, for example, Gauntlet
Security Services (Private) Limited v Leonard
1997 (1) ZLR 583 (S) at 586 C-G and Ambali
v Bata Shoe Company Limited supra
at 419 A-B.
the present case, the Tribunal found that the appellant did not do
anything to mitigate his damages. However, the burden of
that the appellant earned or ought to have earned some money during
the relevant period rested on the respondent.
in Nyaguse v Mkwasine
Estates (Private) Limited
2000 (1) ZLR 571 (S) at 575 C-D this Court said:
at the same time it must be borne in mind that the onus
is on the employer to show that the employee has, or should have,
earned an income from some other source. If the Tribunal is forced
to make an estimate, it must use the information to hand, and not
simply pluck a figure from nowhere.
the respondent was in default on 28 June 2000, when the appeal
was heard by the Tribunal, and on 6 February 2001, when
application for the quantification of the appellants damages was
heard, the onus
of showing that the appellant earned or should have earned some
money, and how much he earned or should have earned, during the
period was not discharged. In any event, it was not argued
on behalf of the respondent that the appellant should have mitigated
his losses. On the contrary, it was submitted that the assessment
of the appellants damages was fair and reasonable, a submission
with which I disagree.
Consequently, on the basis of
the appellants net salary figures, produced to and accepted by the
Tribunal, the appellant is entitled
to the following:
years net salary, being damages in lieu of
reinstatement: $137 676.76
back-pay from November 1996 to June 2000: $197 678.44
allowance (3% of back-pay): $5 930.35
TOTAL: $369 803.42
In the circumstances, the
following order is made
1. The appeal is allowed with
2. The order issued by the
Tribunal on 9 February 2001 is set aside and the following is
(a) That the respondent shall
pay to the applicant the sum of $369 803.42 together with
interest at the prescribed rate from
9 February 2001 to the date
of payment in full.
(b) That the respondent shall
bear the applicants costs.
CHEDA JA: I
GWAUNZA AJA: I
appellants legal practitioners
Gill, Godlonton & Gerrans,
respondents legal practitioners