Civil Appeal No 389/03
HOLDINGS LIMITED v CLEVER SPANERA
SUPREME COURT OF
SANDURA JA & ZIYAMBI JA
HARARE NOVEMBER 23,
2004 & JUNE 13 , 2005
for the appellant
The respondent in
CHIDYAUSIKU CJ: This is an appeal from the Labour Court. The
facts of this matter are fairly simple and straight-forward.
The respondent is a former employee of the appellant. The appellant
dismissed the respondent on 3 September 1999. The dismissal
disputed by the respondent. After his dismissal the respondent was
employed by KB Locksmith with effect from 1 February 2000.
remained in the employment of KB Locksmith from February 2000 to
March 2001. The respondent resigned from his job with KB
on 8 March 2001. He persisted in his action for wrongful dismissal
by the appellant. On 11 June 2002 the Tribunal held
respondent had been wrongfully dismissed on 3 September 1999. The
Tribunal ordered reinstatement of the respondent to
position without loss of salary and benefits from the date of
dismissal, namely, the 3rd September 1999. In the event
of the appellant not being able to reinstate the respondent it was
ordered to pay damages. The damages
were not quantified and the
parties were given leave to approach the Tribunal for quantification
of damages in the event of failure
to agree on the quantum.
The parties failed to
agree on the quantum of damages and approached the Labour
Court (the successor of the Tribunal) for the determination of the
quantum of damages.
At the hearing to determine the amount of damages the respondent,
(who was then the applicant), claimed:
(a) back pay;
(b) benefits i,e, annual bonus and annual wage increases as awarded
by the industry;
(c) compensation for
premature termination of contract;
(d) accumulated leave
The respondent in the court a quo, on the other hand,
offered the equivalent of one years wages plus benefits calculated
with effect from the date of dismissal.
The Labour Court issued the
He (applicant) is thus entitled to his back pay for the period
September 1999 to January 2000 (5 months). He stated that he
earning less than what the respondent used to pay him. Thus for the
period February 2000 to date of judgment he is entitled
damages less what he earned between February 2000 and March 2001.
If he was entitled to any allowances in terms of the contract
should be paid them. He should also be paid all the benefits to
which he is statutorily entitled.
The above is granted
with costs and interest at the prescribed rate.
In the circumstances
the damages should be computed in terms of the above. Accordingly
it is so ordered.
The appellant now appeals against that order. It appeals against
the above order on two grounds set out in the Notice of Appeal:-
1. The Labour Court erred in law, alternatively its judgment erred
so seriously in respect of the facts as to amount to a misdirection
of law in:
1.1 failing to give proper weight to the fact that respondent secured
alternative employment five months after his dismissal;
1.2 in finding that, in computing damages respondent's entitlement
accrued up to the date of the courts judgment; and
1.3 in any event, in
failing to make any computation as to damages.
2. In the circumstances appellant prays that the order of the Labour
Court be set aside and substituted with the following
That the appellant
be awarded damages equivalent to the salary and allowances which he
would have earned from respondent had he
remained in its employment
up to 31 January 2000.
Mr Phillips, for the appellant, argued that the Labour Court
misdirected itself in calculating the damages to which the respondent
He submitted that the respondent was entitled, by way
of damages, to his salary and benefits for the period between his
by the appellant and his employment by KB Locksmith. For
this submission he relied on the case of Ambali v Bata Shoe
Company 1999 (1) ZLR 417 (S). In the Ambali case, supra,
Ambali was wrongfully dismissed and the Tribunal calculated
his damages on the basis submitted by Mr Phillips. In so
doing McNALLY JA at p 419A had this to say:-
He (the employee) will be compensated only for the period between
his wrongful dismissal and the date when he could reasonably
expected to find alternative employment.
learned judge further remarked at p 419D:-
But if an employee is wrongfully dismissed his duty to mitigate
his loss arises immediately. If he is offered a good job the
after he is dismissed he must take it, or forfeit any claim for
damages. If he is offered a good job only after he has been
unemployed for six months, he must take it. If, in the meantime, he
has instituted proceedings for reinstatement he may continue
but his claim for damages will usually then be limited to his loss
over the six month period.
Mr Phillips argued that on the approach adopted in the
Ambali case, supra, the respondent was entitled to his
back pay and allowances from the date of his dismissal by the
appellant to the date he found
employment with KB Locksmith and no
more as his resignation from KB Locksmith on 8 March 2001 was his own
I find myself in
agreement with the submission by Mr Phillips that on the
authority of Ambalis case, supra, the respondent is
entitled to damages calculated on the basis of his income from the
date of his dismissal to the date when he found
On this basis it is quite clear that the learned President of the
Labour Court misdirected herself in regard to the assessment of
quantum of damages to which the respondent was entitled.
In the result the
appeal is allowed with no order as to costs. The order of the
Labour Court is hereby set aside and substituted
with the following
That the applicant be awarded damages equivalent to the salary and
allowances which he would have earned from the respondent had
remained in its employment up to 31 January 2000.
SANDURA JA: I
ZIYAMBI JA: I
Gill Godlonton &
Gerrans, appellant's legal practitioners