CHEDA
JA:
In
a judgment, No.LRT/H/238/2002, dated 26 September 2002 the Labour
Relations Tribunal (now the Labour Court) made an order for the
reinstatement of the respondent to his employment by the appellant.
Part of the order read:
“In
the event that reinstatement is no longer an option the respondent be
and is hereby ordered to pay the appellant damages in lieu of
reinstatement, (the) quantum
of
which the parties may agree, on failure of which the parties may
approach the Tribunal for quantification. (The) appellant (is)
granted costs of suit and interest at the prescribed rate.”
The
parties met as directed, but failed to agree on the quantum
and
returned to the Labour Court once more. Mr Sithole, a Trade Unionist,
represented the then appellant (now the respondent). Part
of his address to the Tribunal reads as follows:
“the
issue of Nharara was partly implemented as per the court order. The
judgment, number LRT/H/238/2002, in that judgment, Your Honour, it
was ordered that the respondent, being Olivine Industries, was
ordered to reinstate the appellant without loss of salary and
benefits. And what Olivine did, Your Honour, was simple (sic)
to back-pay and they said the issue of reinstatement was a
non-starter. We tried our level best, Your Honour, to reason with
the
respondent but to no avail. The respondent has his (sic)
own interpretation of that court order. The respondent was of the
opinion that because the relationship was sour, they (sic)
could not entertain the issue of reinstating Mr Nharara as per the
court order. At the same time they where (sic)
not prepared to pay damages in lieu of reinstatement. And there was a
bit of confusion until we had to write back in terms of the spirit of
the court order we should refer it back to the Honourable Court, and
that is exactly what we did on 11th
of July 2003. And in our referral to this Honourable Court, we wrote
that we could not agree. Olivine Industries decided to pay
only
back-pay. Other benefits and damages they refused, hence our
application for a
set-down for this matter.”
The
above shows that the parties returned to the Tribunal because of the
disagreement on the quantum
of
damages the appellant should have paid the respondent. The appellant
had obviously paid the respondent his back-pay as per part of the
order made by the Tribunal.
After
hearing both sides, the Tribunal proceeded to make the following
order:
“1.
The applicant is awarded back-pay from July 4, 1997 to October 11,
2001, together with all the benefits he would have been entitled to
had he remained in the respondent's employ during that period.
2.
That the respondent pays interest at the prescribed rate on the
back-pay calculated from October 11, 2001 to the final date of
payment.
3.
That the respondent pays the applicant eighteen months salary at
today's rates as damages for the applicant's premature loss of
his job, together with interest at the prescribed rate calculated
from the date of this judgment to the date of payment in full.
4.
That from the back-pay, an amount of $1,052,010.00 (one million
fifty-one thousand and ten dollars) be subtracted since the applicant
has already received this amount.
5.
That each party bears its own costs.”
The
main grounds of appeal to this Court are that:
(a)
the court a
quo erred
at law in awarding two remedies of back-pay and damages, thus
over-compensating him;
(b)
the court a
quo made
a vague award of damages at “today's rates”; and
(c)
the court a
quo made
an award that was neither asked for nor supported by either of the
parties.
The
appellant prays that this Court either re-assess an appropriate award
of damages from the evidence on record or remit the matter to the
court a
quo with
directions to make a proper assessment of an award of damages.
There
are several cases that provide guidance in cases similar to this one.
Where
an employee is found to have been wrongfully dismissed, reinstatement
is normally ordered. Taking into account that in some cases
reinstatement is found to be no longer desirable
if relations
between the parties have soured, provision was made for damages to be
paid to the employee instead of reinstatement. See Gauntlett
Security Services (Pvt) Ltd v Leonard 1997
(1) ZLR 583 (S); Chegutu
Municipality v Manyora 1996
(1) ZLR 262; BHP
Minerals Zimbabwe (Pvt) Ltd v Cranny Takawira SC
81/99 (not reported); and Leopard
Rock Hotel Co (Pvt) Ltd v Hilary van Beek SC6/2000
(not reported).
In
Leopard
Rock Hotel Co (Pvt) Ltd v van Beek supra this
Court stated as follows:
“'Back-pay'
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 alternative employment. See Ambali
supra and
Myers
supra.”
In
this case, it had been argued that back-pay should be paid only up to
the time the respondent could have been expected to have found, with
reasonable diligence, alternative employment. What remained in
dispute was when the payment of salary and benefits should cease.
It
was, therefore, correct to order that the respondent be awarded
back-pay from 4 July 1997, together with interest. The back-pay and
benefits would represent what the respondent should have received had
he not been wrongfully dismissed.
In
additional damages, the award should take into account the period he
should have taken to obtain alternative employment. No evidence was
led on that issue.
It
was also submitted that the respondent earned money repairing
cellphones and selling tomatoes. This, too, should have been taken
into account. No details were given.
While
this Court would have liked to see this matter finalised by making an
order, such order cannot be made without evidence on the amounts
earned by the respondent during that period.
The
respondent can only be compensated by an amount that should be
calculated at the rates applicable at the time and not at today's
rates or some future unknown rates. An order for payment “at
today's rates” is vague and inappropriate in the circumstances.
Today's
rates will obviously be very different from the rates that prevailed
at the time.
In
the previous judgment, No. LRT/H/238/2002, wherein the respondent had
succeeded, he was granted costs. No reason was given for changing the
award for costs in judgment No. LC/H/55/2004. No appeal was lodged
against the order of costs either. Ms Moyo,
for
the appellant, conceded that there was no reason for the Labour Court
to change the order for costs.
Accordingly,
the appeal succeeds to the extent that:
1.
Paragraph 3 of judgment No. LC/H/55/2004 is set aside.
2.
The order for costs is set aside.
3.
The matter is referred back to the court a
quo to
hear evidence on the period the respondent would have been reasonably
expected, with due diligence, to obtain alternative employment,
and
the amount that he earned from repairing cellphones and selling
tomatoes;
4.
The court a
quo is
ordered to award damages at the rates prevailing at that time and not
at today's rates; and
5.
There shall be no order as to costs.
MALABA
JA: I agree
GWAUNZA
JA: I agree
Coghlan,Welsh
& Guest,
appellant's legal practitioners
