In Chambers, in terms of Rule 6 of the Supreme Court (Miscellaneous Appeals and References) Rules, 1975….,.

The background is as follows.

The applicant was employed by the respondent as an Assistant Accountant for 4 years. In February 2004, he was charged with various acts of misconduct including misusing, for an unauthorized purpose, assets belonging to his employer. He claims that he was charged in terms of a workplace Code of Conduct notwithstanding the existence of a registered Industrial Code. He was found guilty as charged and a penalty of dismissal was imposed. He appealed to the Labour Court which upheld his appeal, and, by Order dated 25 October 2005 (“the Order”), ordered his reinstatement without loss of salary or benefits with effect from the date of dismissal without an alternative order of damages. By then, he was in the employ of the Ministry of Agriculture. In June 2010, the applicant applied to the Labour Court for quantification of the salary and benefits due to him in terms of the Order. The Labour Court, having heard argument on the matter, and having taken into account the fact that the applicant had been in the employ of the Ministry of Agriculture, granted damages in lieu of reinstatement. It ordered that the respondent pay, to the applicant, damages in a sum equivalent to six months' salary at the rate applicable on 25 October 2005. The applicant was aggrieved by the order of the Labour Court and obtained leave from that Court to appeal to this Court on August 2011. The sequence of events is as follows:

- February 27, 2004: dismissal from employment;

 - 2004: Appeal to Labour Court filed;

- September 6, 2004: employed by Ministry of Agriculture as accountant;

- July 25, 2005: hearing of appeal before Labour Court;

- October 25, 2005: Labour Court upheld applicant's appeal and ordered reinstatement;

- March 31, 2009: applicant dismissed by Ministry of Agriculture;

- June 2010: applicant applied to Labour Court for the quantification of salaries and benefits due to him in terms of the Order;

- February 25, 2011: Labour Court granted damages in lieu of reinstatement equivalent to 6 months' salary at rates applicable on 25 October 2005, the date of the Order reinstating the applicant;

- August 2011: leave to appeal to the Supreme Court granted by the Labour Court;

- January 6, 2012: this application filed…,.

As to the prospects of success;

It will be seen from the sequence of events set out above that the applicant obtained alternative employment with the Ministry of Agriculture within six months from the date of his dismissal by the respondent. He was employed, at first, as 'Accountant' and later promoted to the post of 'Senior Accountant'. The hearing of the appeal by the Labour court took place on the 25 July 2005. The applicant did not advise the court that he was then working with the Ministry of Agriculture. The court upheld his appeal, and, by Order dated 25 October 2005, remitted the matter to the respondent for a fresh hearing and directed that pending the fresh disciplinary hearing the applicant be reinstated to his original position without loss of salary or benefits with effect from the date of dismissal.

The legal position which then pertained was that the applicant was no longer an employee of the respondent having obtained permanent employment elsewhere and the Order could not be carried out. That notwithstanding, the respondent noted an appeal against the Order. That appeal lapsed on the 18 November 2006.

On 31 March 2009, the applicant was dismissed by the Ministry of Agriculture for misconduct. It was not until some fifteen months later, in June 2010, that the applicant decided to pursue his rights in terms of the Order. According to the applicant, he launched an application in the Labour Court for quantification of the monies due to him in terms of the Order from the date of dismissal to the date of judgment, 25 February 2011. (The Labour Court's judgment, however, states that the application was for quantification of damages in lieu of reinstatement).

Whatever the wording of the application, the Labour Court was of the view that the application was for quantification of damages in lieu of reinstatement and treated it as such. It found, as a fact, that the applicant had been in the permanent employment of the Ministry of Agriculture from September 2004 despite the applicant's argument to the contrary that it was merely temporary employment, and ordered the respondent to pay the applicant damages – in lieu of reinstatement - equivalent to six months' salary at the rate applicable on 25 October 2005, the date on which the Order of reinstatement was made.

The grounds on which it is proposed to appeal are set out as follows:

“Grounds of Appeal

1. The Honourable President grossly erred at law in failing to find, as she should have done, that the respondents had approached the Court with dirty hands since they had not purged their contempt, having wantonly disregarded an earlier order by Honourable President Mtshiya.

2. The Honourable President grossly misdirected herself on a point of law in treating the application for quantification of outstanding salaries and benefits as one for quantification of damages in lieu of reinstatement when it was clear that damages in lieu for reinstatement were not part of Honourable President Mtshiya's earlier order.

3. The learned President a quo grossly erred and seriously misdirected himself on the facts which amounted to misdirection on the law in failing to find, as she should have done, that appellant was temporarily employed.

4. Honourable President further misdirected herself on a point of law in finding that, by so securing alternative employment, appellant had repudiated the contract and therefore it was only entitled to damages for the period before the re-employment.

5. The learned President further misdirected herself on a point of law in ordering the payment of the said damages in the now moribund Zimbabwean dollar currency when it was common cause that making such an award is no worse than awarding nothing to the applicant.”

None of the proposed grounds of appeal is sustainable….,.

As to the first ground of appeal, the applicant had already obtained permanent employment with another employer. The Court concluded that he had repudiated his contract of employment with the respondent so that at the date of the Order he could not tender his services to the respondent.

The court a quo was correct.

Its finding is supported by cases such as Zimbabwe Sun Hotels (Pvt) Ltd vs Lawn 1988 (1) ZLR 43 (S); Ambali v Bata Shoe Company 1999 (1) ZLR 417; Nyaguse v Makwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S). Not only did the applicant's repudiation place the respondent in a position where it could not perform the Order of the court, and therefore did not have 'dirty hands' but, as the respondent pointed out, the approach to the Court was made by the applicant. It is he who caused the respondent to be summoned before the court.

The Supreme Court upheld the decision of this court.reinstating him without loss of salary and benefits.The respondents reinstated the applicant to the position of.but the applicant's position before the purported dismissal was that of.What the respondents attempted to do was not in terms of the court order as they were demoting the applicant to a lower grade. The respondents were clearly wrong.

The second issue for determination is whether or not the court a quo misdirected itself in confirming the award made by the arbitrator on the quantum of damages due to the respondent. 

The record shows that there was no evidence upon which the arbitrator based his award other than an unsubstantiated statement of claim by the respondent. The Labour Court accepted the claim on the basis that the appellant had not opposed it.

There can be no doubt that the Labour Court fell into error in coming to this conclusion as it is settled law that damages in these circumstances must be properly proved by the party seeking the same. Indeed, counsel for the respondent did concede that both the arbitrator and the court a quo had erred in this respect.

Accordingly, this ground of appeal must succeed.

In view of the fact that there is need for the quantum of damages to be properly proved, the issue ought to be remitted to the court a quo for determination after evidence has been adduced….,.

Accordingly, it is ordered as follows:

1. The appeal succeeds to the extent that the award of damages be and is hereby set aside.

2. The matter is remitted to the court a quo for the quantification of damages to be done after evidence has been adduced.

This is a labour dispute between the parties. A brief history of the matter is as follows:

The appellant (the Corporation) employed the respondent (Mr Moyana) on 20 October 1980 as a Marketing Executive. The contract was a simple one, providing that his functions were to be assigned to him from time to time. His starting salary was specified and it was provided that "salary reviews are carried out in Nedlaw as and when an executive shows himself to have performed well and produced results."

(Nedlaw was the Corporation's holding company).

There was also provision for one month's notice of termination of the contract to be given by either side.

Mr Moyana became a Training Officer in the Training Department in 1981 and a Principal Training Officer on 9 January 1982.

On 27 May 1986, the Group Personnel and Training Director wrote complaining about certain alleged shortcomings in Mr Moyana's work, and Mr Moyana replied rejecting the complaints. He claimed that the problems arose out of shortage of staff, and pointed out that the Training Manager had been transferred and not replaced. He claimed that his request for a salary review had been ignored and asserted that he was entitled to an acting allowance during the absence of the Training Manager.

The Corporation's Chairman then wrote withdrawing the letter of 27 May 1986 and adding "Your reply dated 2 June 1986 therefore falls away."

Mr Moyana at once responded that he did not withdraw his claim to be paid as a Training Manager from the time the actual Training Manager had left. (He did not, at any stage, rely on an actual appointment as Training Manager).

After a certain amount of bickering, which need not be set out, the Corporation suspended Mr Moyana without pay with effect from 16 July 1986 and referred the dispute to a Labour Relations Officer in terms of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations 1985 (S.I.371 of 1985).

Thereafter, events developed as follows:

1. On 1 October 1986, the Hearing Officer made a determination that Mr. Moyana be reinstated and paid $12,000 in "Back payment in salary."

2. The Corporation appealed to the Regional Hearing Officer, but, meanwhile, on 6 October 1986, reinstated Mr Moyana as directed.

3. On 22 December 1986, the Regional Hearing Officer upheld the Hearing Officer's decision and increased the "back payment" from $12,000 to $15,184.

4. On 25 March 1987, the High Court, in Judgment No. HH168-87, set aside both these determinations on the grounds of procedural irregularity. In doing so, it commented: "It may well be that, in practical terms, the applicant will be obliged to approach the Labour Relations Officer once again for authority to dismiss the second respondent, but, that is not the concern of this court."

5. Ignoring this advice, and after further criticism by the Corporation's senior officers of Mr Moyana's performance, the Chairman wrote to him, on 28 May 1987, formally terminating his contract of employment and giving him a month's pay in lieu of notice.

6. On 8 June 1987, Mr Moyana referred this dismissal and his claim for an acting allowance of $33,750 to a Labour Relations Officer.

7. The matter was referred to the Labour Relations Board in terms of section 109(2)(d) of the Labour Relations Act, 1985.

8. The Labour Relations Board made determination on 8 April 1988. In summary, it ordered:

(a) Payment of an acting allowance for the twenty-four months preceding the date of the order. Page 307 of 1989 (1) ZLR 304 (SC).

(b) Payment of emoluments from the date of illegal termination to date.

(c) Termination of the contract of employment forthwith (ie with effect from 8 April 1988) on the ground of incompatibility.

9. The Corporation appealed against this decision to the Labour Relations Tribunal which, in an undated judgment apparently handed down on 12 October 1988, ordered as follows:

"1. That the termination of Mr Moyana's contract of employment, as per the Corporation's letter of 28 May 1987, was of no force or effort.

2. That Mr Moyana be and is hereby reinstated as the Corporation's Principal Training Officer without loss of salary or other benefit accompanying his post.

3. That the Corporation pay Mr Moyana acting allowance for carrying out the functions of a Training Manager for a period of 24 months extending from 8 July 1987 and dating back to 7 July 1985 at the rate for the job less his salary as Principal Training Officer.

4. That there be no order as to costs."

Against this order, the Corporation appealed to the Supreme Court. It alleged a number of procedural irregularities and sought a reversal of each of the orders made by the Tribunal.

I will deal with them in turn....,.

(B) REINSTATEMENT

It is quite obvious that the Corporation does not want to take Mr Moyana back.

For his part, Mr Moyana has tended to blow hot and cold. On the one hand he accepted his terminal benefits, including a refund of his pension contributions, after he was "dismissed" in May 1987. At times, in his argument, which is not always easy to follow, he seemed to accept that the termination of his employment was inevitable and acceptable to him. Thus, at p51 of the transcript of the submissions before the Tribunal (although it is headed "Labour Regulations Board" it is clearly the proceedings before the Tribunal) he is recorded as saying:

"In the final analysis also, the termination of the…, I think it was very fair. Secondly, the fact that they are saying: 'why did you not contest', whereas, in all honesty, in management, you would not want to be seen to be forcing yourself on people when it has become obvious the sun has set. All I can ask through your office, My Lord, is that they should desist from following me up. We should be allowed to part amicably…,."

A little later, he seems to go back on that statement and says categorically:

"I would like to be reinstated. "

Overall, however, one gains the very strong impression that he sees reinstatement as a bargaining counter. He wants to establish his claim to have been wrongfully dismissed, and it is in that sense, really, that he speaks of reinstatement. What he wants is to have the dismissal set aside, to have his financial rights determined, and then to part company with the Corporation.

It is important to clarify this attitude on his part because the Corporation is taking what might, in different circumstances, be regarded as a somewhat technical point against him.

They say that the Board had a discretion to reinstate him; it decided not to do so; he did not appeal against that decision; and therefore the Tribunal had no jurisdiction to reverse the decision.

The Board which made the decision not to reinstate was undoubtedly a "determining authority" as defined in terms of section 2. The Board is given the power, in section 111(2)(c), to order reinstatement in a job. Obviously, it must have a discretion in that regard. In this case, it decided not to do so on the grounds of incompatibility. That can hardly, in the circumstances, be described as a decision no reasonable Board could make.

No appeal was lodged in terms of section 40 of the Labour Relations (General) Regulations 1985, (S.I.368 of 1985) by Mr Moyana.

The Tribunal, which is a creature of statute and whose powers therefore must be founded within the four walls of the Labour Relations Act, has its powers defined in section 107 of the Labour Relations Act, which reads:

"In determining an appeal in terms of this Part, the Tribunal may confirm, vary, or set aside the decision appealed against and make an order accordingly, and may include in such order any order that to costs as it thinks fit."…,.

The decision of the Board, not to reinstate Mr Moyana, was not appealed against. He himself did not appeal at all, and the Corporation appealed only on other parts of the Board's determination.

It is true that the Corporation appealed against the date with effect from which reinstatement was refused (8 April 1988) and claimed it should have been as from 28 May 1987, but, that was not an appeal against the decision not to reinstate.

The Tribunal does not seem to have addressed itself to the legal implications of this question.

The judgment of the President does record that in terms of section 7(1) of the relevant Regulations (S.I.369 of 1985) "an appeal from a decision of the Board to the Tribunal shall be an appeal on the Record of the Proceedings before the Board and shall not be in the nature of a re-hearing…,."

This provision was, however, not considered in the context of whether the issue of reinstatement was before the Tribunal.

The Tribunal appears to have taken the view that if the dismissal was unlawful Mr Moyana was, ipso facto, entitled to reinstatement. They found his dismissal was unlawful and therefore they ordered his reinstatement.

It seems to me, with respect, that, in this, the Tribunal was wrong.

Reinstatement is not the only or the inevitable remedy for wrongful dismissal. It is a remedy. There is an alternative remedy, which is a claim for damages for wrongful dismissal.

The matter is expressed as follows in "Labour Law; Cases and Materials" by BENEDICTUS & BERCUSSON:

"The obvious remedy for unjustified ('unfair') involuntary termination is re-employment, if the employee so wishes, and, otherwise, compensation.

The first remedy is not available at common law.

The essentially reciprocal nature of contractual obligations means that it is impossible to force an unwilling party to remain bound to a contract against his will. This, in effect, gives a veto to either side to prevent the continuance of a contract of employment notwithstanding the possible merits of the other party's case for maintaining the contractual relationship.

Compensation, at common law, is minimal, being confined to the precise contractual loss suffered…,. Statute, as will be seen, has only partially overcome these limitations."

The authors then go on, at p394, to quote another book which says:

"Although reinstatement is clearly the primary remedy for unfair dismissal provided by law, very few successful applicants are awarded it. The usual remedy for successful applicants is compensation."

It would seem that the English legislation has more detailed provisions for compensation than ours, but, the point that I am making is that reinstatement is not the inevitable consequence of a finding of wrongful dismissal.

The Board decided against it, and the Tribunal had no jurisdiction to interfere with the decision in the absence of an appeal against it.

Towards the end of its judgment, the Tribunal reverted to this point. It said:

"We are unable to support the Board's finding that 'the two parties could no longer work together' on account of incompatibility. Mr Moyana has asked to be reinstated. We believe that had the position been that he was no longer prepared to work for the Corporation, he would not have prayed for this relief. In any event, incompatibility between an employer and an employee, even where it has been established, is not, in our law, a ground for the employer to terminate the contract of employment unilaterally."

This passage calls for comment in two respects:

(i) First of all, the Board's finding was not an incompetent finding. It was within the Board's powers to make such finding. That being so, the Tribunal had no power to question the finding in the absence of an appeal against it. Note that the Tribunal's review powers are very limited: section 24 of S.I.369 of 1985.

(ii) Secondly, incompatibility was not a ground upon which the employer had sought to terminate the contract of employment. It was a ground upon which the Board had decided not to order reinstatement.

I conclude, therefore, that, the question of reinstatement was not before the Tribunal and it had no jurisdiction to make an order on the subject.

This is an appeal against a judgment of the Labour Court dismissing an appeal against an award rendered by an arbitrator. That arbitral award quantified the damages payable to the appellant pursuant to an earlier award ordering his reinstatement into the service of the respondent.

Background

The respondent is a statutory body established under the Agricultural and Rural Development Authority Act [Chapter 18:01]. The appellant was employed by the respondent in January 2008 as its Chief Executive Officer cum General Manager. On 26 February 2009 he was sent on special leave and on 19 May 2009 he was notified by the respondent of its decision to terminate his employment.

The matter was then referred to an arbitrator.

On 26 January 2010, the arbitrator found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator.

On 27 October 2010, the arbitrator quantified his award for damages in lieu of reinstatement. He based his award on a monthly salary of US$1,009= in accordance with documentary evidence furnished by the respondent. He then ordered the respondent to pay the following amounts:

(i) $19,384= as back-pay and benefits from the date of dismissal to the date of his first award;

(ii) Cash in lieu of leave;

(iii) $60,540= being sixty months' salary as damages for loss of employment;

(iv) A further $60,540= being sixty months' salary as punitive damages for failure to reinstate; and

(v) Interest at the prescribed rate on all of these amounts.

The appellant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator's award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent.

Decision Appealed

The court a quo dismissed the appeal and partially allowed the cross appeal for the following reasons.

It found, having regard to the relevant correspondence, that the possibility of reinstatement was not part of the arbitrator's mandate. The effective date of termination of employment was 4 February 2010, when the respondent opted to pay damages, and not when the Labour Court ruled against the appellant's reinstatement. The court also found that the arbitrator's reliance on a monthly salary of $1,009= was based on irrefutable evidence and more in accordance with reason, as compared with the figure of

$5,000= claimed by the appellant. As regards the appellant's claim for contractual benefits, no documentary or other evidence was placed before the arbitrator to substantiate that claim. Again, his claim for punitive damages was neither placed before the arbitrator nor substantiated by any supporting evidence. Similarly, the respondent's claim to deduct certain amounts owed by the appellant was not raised before the arbitrator.

In the event, the court a quo dismissed the appeal and allowed the cross-appeal to the extent of setting aside the arbitrator's award of punitive damages.

The issues raised in the notice of appeal herein are largely identical to those before the Labour Court and may be summarized as follows:

(i) Whether the question of reinstatement was an issue before the arbitrator, in addition to the quantification of damages in lieu thereof.

(ii) What was the effective date of termination of employment? (This issue was not pursued by counsel for the appellant and appears to have been abandoned).

(iii) What was the correct amount of the appellant's monthly salary?

(iv) Was the appellant entitled to his claim for contractual benefits?

(v) Whether the claim for punitive damages was properly before the arbitrator and correctly awarded by him.

Reinstatement and Quantification of Damages

At the hearing of this matter, counsel for the appellant largely focused his argument on the question of reinstatement. He submits that damages are only payable if reinstatement is not tenable. This is not a matter for the employer's election but, as envisaged in sections 89(2)(c) and 97(2) of the Labour Act [Chapter 28:01], a matter of fact to be alleged and proved by the employer. There must first be an inquiry as to whether reinstatement is no longer tenable and the employee remains employed until that inquiry is finalized. Despite the appellant's submissions on this point, the arbitrator proceeded on the basis that he was only dealing with quantification. Similarly, although this was raised before the court a quo, it misdirected itself in not upholding this ground of appeal. The matter should therefore be remitted to that court to determine this question.

Counsel for the respondent submits that section 89(2)(c) of the Labour Act [Chapter 28:01] does not give the Labour Court the power to order reinstatement without damages. The same applies to an arbitrator by virtue of section 98(9) of the Labour Act [Chapter 28:01]. The alternative of damages in lieu of reinstatement must be stipulated. This codifies the common law position enunciated in Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

For the purposes of this case, it only becomes necessary to consider and interpret the provisions of the Labour Act [Chapter 28:01] adverted to by counsel if it is found that the question of reinstatement was properly and squarely before the arbitrator in the first instance. If it was not, there would be little point in embarking on an abstract and academic exercise of no present significance.

In addressing this aspect, it is necessary to consider the relevant correspondence between the parties' legal practitioners….,.

There is a further and more important aspect of this case that must be considered in relation to the events preceding the second arbitration.

On 14 July 2010, both parties received the arbitrator's notification to attend arbitration proceedings in “the matter concerning quantification of damages in lieu of reinstatement.” On the date scheduled for the hearing, i.e. 21 July 2010, the appellant's legal practitioners wrote to the arbitrator seeking a postponement of the hearing because the lawyer handling the matter was engaged in a continuing trial. The arbitrator proceeded to hold a pre-arbitration hearing on the same date and issued an interim order setting out the timelines for the filing of submissions by the parties and a fresh date for the hearing of the matter. Paragraph 1 of this Order explicitly stated that “the Claimant shall file his submissions on quantification of damages in lieu of reinstatement with the Arbitrator…,.” Subsequently, the arbitrator issued a further notification to the parties to attend arbitration proceedings on 26 August 2010, again in “the matter concerning quantification of damages in lieu of reinstatement.”

As is evident ex facie the interim order, the pre-arbitration hearing was attended by the claimant (the appellant) in person and by the respondent's counsel and instructing legal practitioner. The written order itself appears to have been acknowledged as having been received by both parties on 23 July 2010. It is abundantly clear from all of the foregoing that the appellant and his legal practitioners were fully aware of the purpose of the arbitration proceedings in question and the sole issue for determination by the arbitrator, i.e. the quantification of damages in lieu of reinstatement. Despite that awareness, they did nothing to disabuse the arbitrator or the respondent of the notion that this was the sole issue for determination. Nor did they take any steps to have the interim order revised to incorporate the question of reinstatement.

In these circumstances, the arbitrator cannot be faulted for having disregarded that question in the proceedings before him and in the terms of the award that he rendered. By the same token, the court a quo cannot be found to have misdirected itself in holding that the arbitrator did not err in confining himself to the issue of quantification of damages and that he had no mandate to consider whether or not reinstatement was still possible.

In the premises, I find that the question of reinstatement was not an issue before the arbitrator in addition to the quantification of damages in lieu thereof. In the light of this finding…, it becomes unnecessary to address the larger question as to whether the viability of reinstatement must first be determined before proceeding to consider the alternative of damages.

In any event, it follows that the first ground of appeal cannot be sustained and must accordingly fail.

Correct Monthly Salary and Contractual Benefits

In his submissions before the arbitrator and the court a quo, the appellant's position was that his salary before the termination of his employment was in the region of US$5,000= per month. Both the arbitrator and the court rejected this position and adopted the figure of US$1,009.= as the basic monthly salary, having regard to the documentary evidence adduced by the respondent.

At the hearing of this appeal, counsel for the appellant did not, quite correctly in my view, pursue the grossly inflated figure initially contended for by the appellant. Instead, he submitted that the figure that should have been used in assessing damages is not the basic salary of US$1,009= but the net salary of US$1,032=54 as appears from the monthly computation presented by the respondent.

Counsel for the respondent did not challenge this position and I see no basis for disallowing the amount of US$1,032=54 as the net monthly salary for the purpose of calculating the terminal payments due to the appellant.

Insofar as concerns the contractual benefits payable to the appellant, these appear from his letter of appointment, dated 7 November 2007, enumerating the multifarious allowances and benefits offered to him as part of his total remuneration package. Counsel for the appellant, in his submissions, confined himself to the housing allowance, being 20% of basic monthly salary, and professional and club membership allowance, being 2% of annual salary.

Having regard to the amounts reflected in the monthly computation that I have alluded to above, it is clear that the housing allowance of 20% was already factored into the appellant's pay structure in arriving at his net monthly salary. However, the professional and club membership allowance was omitted and must obviously be incorporated in calculating the contractual benefits due to the appellant.

In the premises, I find that the sums payable to the appellant (in respect of back-pay and benefits, cash in lieu of leave, and damages for loss of employment) as quantified by the arbitrator and endorsed by the Labour Court, are to be re-calculated on the basis of a monthly salary of US$1,032=54 (as opposed to US$1,009=) and with the addition of 2% of annual salary for the professional and club membership allowance….,.

Disposition

In the result, the appeal succeeds to the very limited extent that I have indicated in relation to the monthly salary and contractual benefits that are due to the appellant. Consequently, the correct net monthly salary of US$1.032=54 (instead of US$1,009=) and an additional 2% of the basic annual salary for professional and club membership allowance (i.e. 2% of US$1,009= X 12) are to be applied in recalculating the amounts payable to the appellant in respect of backpay and benefits, cash in lieu of leave and damages for loss of employment.

I should add that the resultant adjustments are considerably smaller than would have been the case had the appellant succeeded in his wholly insupportable claim to peg his salary in the region of US$5.000= per month.

In all other respects, which constitute the bulk of the issues before this Court, the appeal cannot be sustained and must therefore be dismissed. Given the virtually inconsequential extent of the success enjoyed by the appellant, it seems appropriate that he should bear the costs of this appeal.

It is accordingly ordered that:

1. The appeal is partially allowed as regards the salary and allowance figures to be applied in calculating the amounts payable by the respondent to the appellant.

2. The appeal be and is hereby dismissed in all other respects.

3. The appellant shall pay the costs of this appeal.

In Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 it was held that from an order of reinstatement the following consequences are said to flow-

(a) The employee is entitled to be replaced in his post;

(b) There is no obligation on the employer to provide him with work;

(c) The employer must continue to remunerate him upon the tender of his services;

(d) The employer is to restore him to the pay roll with effect from the stipulated date.

Of note is the fact that the applicant had been dismissed as far back as 1995. In 1995 the applicant was not yet due for retirement but by 21 December 1999 he had passed his retirement age of sixty (60) years which was due in June 1999.

The order of the Appeals Board and, indeed, that of the Labour Relations Tribunal, created no rights for the applicant outside the normal contract of employment between the parties for to do otherwise would entail the Tribunal creating a new agreement for the parties which no court is legally competent to do. The contract of employment between the parties was to run until the applicant attained the age of sixty (60) years (his retirement age) which was due in June 1999. Despite having been dismissed in 1995, the applicant, on being reinstated pursuant to the Tribunal's order, had what he was owed until his retirement age calculated and tendered to him on 10 June 2006 including an ex gratia payment of $15 million by way of cheque. However, for reasons best known to himself, the applicant refused to accept the payment.

Paragraph 1.20 of the third respondent's Pension Fund Rules clearly stipulates that the normal retirement age is sixty (60) years. Paragraph 5.1.1(iii) allows retirement past the normal retirement date if the member so wishes and the employer is agreeable but not later than the attainment of age seventy (70) years....,.

In the instant case, no such agreement to extend the applicant's retirement age up to seventy (70) years was ever reached by the parties.

The contention by the applicant that “in terms of the proviso to r 5.1.1 (ii) of the Pension Rules, the retirement age provided for in the Pension Rules does not apply to an employee who has been made “redundant” is a misinterpretation of the relevant paragraph. The proviso sought to be relied upon reads-

“It is specifically provided that the age requirements shall not apply in respect of a member whose retirement is due to retrenchment or redundancy.”

This proviso is only relevant to and limited to subpara (ii) which governs early retirement stipulating age  fifty-five (55) years (or  fifty (50) years in respect of a female member). These are the age requirements which “shall not apply in respect of a member whose retirement is due to retrenchment or redundancy.”

The proviso does not at all apply to the normal retirement age in subpara (i).

Although the Appeals Board, and, a fortiori, the Labour Relations Tribunal, ordered the applicant's reinstatement by the third respondent “up to the day that they hold the new initial hearing..., with full back pay of all monies owed to him” both orders were made well after the applicant's retirement date of age sixty (60) years as contemplated by the contractual relationship between the two parties. It cannot, by any stretch of the imagination, be construed to mean that the employment contract was meant to endure after the cut-off date of retirement. As it is, the applicant is now well over seventy-three (73) years and no initial hearing has been held.

Can it then be argued that the applicant has rights emanating from the contractual relationship?

With regard to the issue of whether or not the applicant should be reinstated or paid compensation in lieu of reinstatement, the applicant's initial view, as presented by his then legal practitioner, was that the preferred option was one of reinstatement.

The reason given, at the time, was mainly that it was difficult to assess or calculate the damages because the bulk of the damages from 1999 to 2009 would have to be computed in Zimbabwe dollars, a currency that was no longer applicable in our country. Awarding the applicant such damages in Zimbabwe currency would effectively amount to no relief to him now. However, the applicant's position changed soon after Mr Kawonde, his then legal representative, had renounced agency. The applicant's current position is that he accepts that the best way forward was the payment of damages in lieu of reinstatement.

The first respondent also prefers the payment of damages as the best way forward.

I must add that I totally agree with the respondent's view in this matter as it is the only choice anyway. Reinstatement is inappropriate, in my considered view, because there has been a total breakdown of the working relationship between the parties. It is clear that there is no longer any mutual trust, confidence and integrity. Any absence of those attributes in the Police Force or between or amongst its members would make the working relation unworkable. The first respondent has also made it clear that it no longer would want to continue employing the applicant. In Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 344 (S)…., it was held that -

“It is easy to conceive a situation in which, albeit, no blame whatsoever attaches to the employee, the inescapable inference is that the personal relationship between him and the employer has broken down to the extent that trust in one another has been lost. For a court to order reinstatement against a backdrop of animosity and ill-will, solely because an employee unreasonably and out of wounded pride seeks it would be to permit the continuation of an intolerable personal relationship, one which will make it impossible for the employee to perform his duties either to his own satisfaction or that of his employer.”

INNES CJ stated the same thing in Johnson Schrewbury v Birmingham Rly Co (1853) 22 LJ ch 291 when he had this to say -

“…., the inadvisability of compelling one person to employ another whom he doesn't trust in a position which imports a close relationship and the absence of mutuality for no court could compel, by its order, a servant to perform his work faithfully and diligently.”

McNALLY J in Art Corporation Ltd v Moyana 1989 (1) ZLR 304…., also stressed the same point when he said -

“The obvious remedy for unjustified unfair involuntary termination is re-employment, if the employee so wishes, and otherwise compensation. The first remedy is not available at common law, the essentiality reciprocal nature of contractual obligation means that it is impossible to force unwilling party to remain bound to a contract against his will. “

It seems to me therefore that the applicant should be paid damages in lieu of reinstatement.

I shall now proceed to determine the issue of the payment of damages in lieu of reinstatement. The quantification of such damages is not an easy task, particularly where the bulk part of the period within which the applicant was unlawfully out of employment is during the Zimbabwe dollar era.

The principles governing the payment of such damages are well settled in our law. An employee is entitled to be awarded the amount of wages or salary he would have earned save for premature termination of his contract by the employer. He may also be compensated for the loss of any benefit to which he was contractually entitled and of which he was deprived in consequence of the breach. See Charles Ambali v Bata Shoe Company Limited SC56-99; Kuda Madyara v Globe 7 Phoenix Industries (Pvt) Ltd SC63-02; Zimbabwe United Passenger Company v Richard Christopher Daison 87/02; and Gauntlet Security Services v Leornard 1997 (1) 583 (S).

Our law is also settled in that the employee must mitigate his loss. He cannot just sit and do nothing. If he fails to take up other employment when it would have been reasonable to do so, a deduction will be made in respect of the remuneration he would have earned from the substituted employment.

Further, according to our law, the measure of damages accorded such employee is the actual loss suffered by the employee represented by the sum due to him for the unexpired period of the contract less any sum earned or could have earned during such latter period in similar circumstances.

In an effort to quantify what is due to the applicant, the first respondent approached the Reserve Bank of Zimbabwe with a request to quantify what the applicant would be entitled to during the period 1999 to 2009, using the various exchange rates which were applicable during the different stages along the 10 year period. The Reserve Bank kindly obliged and came up with what I believe is an unrealistic cumulative figure of US$259,014=72 inclusive of salary, bonuses, allowances, leave days and medical aid. A close analysis of the schedules submitted would show that during most of the time the applicant would have been paid an average salary of around US$600= per month excluding all other allowances. A good example in point is the salary applicable in the schedule for the entire 2002. It is my considered view that there is no way a constable would have been paid over US$600= per month. It is also my considered view that a realistic salary would have been something akin to the current position, which is a salary of around US$150= to $200= per month. If my above view is correct, as it is based on the current and true salaries being paid to constables, then it means the applicant would have to be paid a quarter of the figure which was used in most schedules submitted, including that submitted by the applicant.

It must also be mentioned that in an effort to assist the court with the formula to quantify what is due to the applicant, the first respondent approached the Pensions Office, which indicated that the best way to resolve this matter was to treat the applicant as a retiring member of the Police Force, who would be retiring at 50 years of age, and would be entitled to a lump sum payment of US$6,101=57 and a monthly pension of US$79= until he dies. The Pensions Office had used a straight monthly salary of US$165=.

The applicant's position is that he accepts a lump sum payment of a pension of US$6,101=57 and a monthly pension of US$79=. He would also want, in addition, US$31,251=, being salary, allowances, bonuses, loss of free accommodation, leave days and loss of medical services, making a total of US$318, 552=40. His claim for salary and benefits above was based exactly on the over-dramatized and unrealistic schedule drawn up by the Reserve Bank, which I referred to earlier on. The applicant also requested that he be promoted to the rank of sergeant for the purposes of pension only. His request was based on his high hopes of promotion at the time based on some examination he had passed. The first respondent has indicated that it was unwilling to treat the applicant as a sergeant for purposes of calculation of damages. My considered view is that issues of promotion are best left to be decided by the employer and is not for the court to decide.

It seems to me that, having decided as I have done above, that the Reserve Bank of Zimbabwe had assumed high rates of monthly salary of US$600=, in calculating the applicant's dues, and that the current rates used by the Pensions Office, at US$165=, would be appropriate, it follows that the correct figures the applicant is entitled to are a quarter of the figure which was submitted by the parties. When the above figures are applied, this would mean that the applicant is entitled to US$78,113=, which figure includes arrear salaries, allowances, bonuses and leave days.

The applicant did not adduce evidence to show that he sourced for alternative employment soon after being unlawfully dismissed from employment. The law requires that he secures alternative employment. He cannot just sit at home for more than 10 years expecting wholesome payment from his employer. In the absence of evidence to show that the applicant obtained alternative employment, it is my considered view that it was reasonable to expect the applicant to have serviced for alternative employment. In view of that finding, it is equitable that a deduction be made from his entitlement in respect of the remuneration he would have earned from the substituted employment. A reasonable deduction would have to be based on the same rate of US$165= per month for a period of ten years. Such deduction would come up to US$19,800=. When that deduction is considered, it means that the applicant is entitled to US$58,313=. In addition, he is also entitled to a lump sum pension payment of US$6,101=57 and a monthly pension of US$97= (or such other rates as are applicable by the Pension Office to people of the rank of the applicant).

After taking all the above into consideration it is ordered as follows;

1. First respondent be and is hereby ordered to pay the applicant damages in lieu of reinstatement in the sum of US$58,131= being arrear salaries, bonuses, accommodation, leave days and medical services.

2. First respondent to pay the applicant a lump sum pension of US$6,101=57 and a monthly pension of US$97= until his death.

On the issue of damages, it is common cause that neither party adduced evidence before the arbitrator.

It is settled law that damages are meant to place the employee in the position he would have occupied had the contract of employment not been terminated, subject to the duty upon him to mitigate his loss. Evidence on the quantum of damages due to an employee following the unlawful termination of employment must be adduced to enable a proper quantification to be made. See the remarks of GUBBAY CJ in Ruturi v Heritage Clothing (Pvt) Ltd (1994) (2) ZLR 374 (S) to the following effect:

“In so far as the award of damages is concerned, it is apparent that no evidence was at any stage. The Tribunal did not have recourse, as it ought to have, to s18(1) of the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993), which empowers it to require any witnesses to give evidence on oath or affirmation…,.

For these reasons, the award must be set aside; for to quantify damages, or indeed making any finding, on no evidence, is to err in law. See R v Birmingham Compensation Appeal Tribunal, Ex p Road Haulage Executive [1952] 2 All ER 100 (QB) at 101F; Wade Administrative Law 6 ed at p320; de Smith Judicial Review of Administrative Action 4 ed at p 133.”…,.

The appellant has submitted, as it did before the Labour Court, that the error by the learned arbitrator in quantifying damages in the absence of evidence was to err at law in which event the appeal against the award of damages was on a question of law.   

I agree….,.

It is appropriate, therefore, that the matter be remitted to the court a quo for the quantification of damages.

Accordingly, the appeal succeeds and the order of the court a quo is set aside.

It is ordered as follows:

The appeal is allowed with costs.

1. The judgment of the labour court is hereby set aside.

The applicants in this matter sought to register an arbitral award relating to them in terms of section 98(14) of the Labour Act [Chapter 28:06].

The applicants had been awarded two different awards on different dates. The first award, dated 2 June 2006, provided as follows:-

“Award

(1) The employees are reinstated without any loss of pay and benefits from the date of dismissal.

(2) The parties to negotiate damages within 21 days as an alternative to reinstatement if continued employment is not possible.

(3) Parties to refer the matter to the arbitrator if negotiation of damages proves elusive for quantification of damages.”

The second award, dated 27 September 2010, reads as follows:-

“Award

The arbitrator will award that the employees should be paid their back pay without any loss of pay and benefits from February 2009, the time forex started, to the 3^rd September, the date of the hearing for quantification of damages. Furthermore, the employer must pay 12 months damages in the lieu (sic) of reinstatement. The issue of prescription does not arise as the judgment made by the arbitrator is still in force and there was no interim order staying the award.”

The applicants were not satisfied with what they were awarded by the arbitrator. Their belief was that they were entitled to much more than was awarded by the arbitrator.

Further, the quantification done by the arbitrator lacked details. The arbitrator should have done the calculation and arrived at a specified amount which he would then pronounce. The award, as it stands, is incomplete and is not registerable. More must be done either before an arbitrator or the Labour Court for proper quantification of what was awarded by the arbitrator prior to the award being registered as an order of this court in terms of section 98(14) of the Labour Act [Chapter 28:01].

The applicants sought to move that this court should take it upon itself to deal, at first instance, with what the arbitrator had not done. 

This court cannot do what is specifically prohibited by law. The Labour Act outlaws that in section 89(6) which provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subsection (1).”

Turning to the award of damages, it should have been obvious to the learned President in the court a quo that there was no evidence of damages led before the arbitrator.

It is well settled that in the assessment of damages for unlawful dismissal, an arbitrator or a court is not entitled to pluck figures from the air, and that any award of damages must be premised on evidence of actual earnings by the dismissed employee. See Redstar Wholesalers v Mabika SC52-05.

In the case in point, not only was there no evidence of any earnings in Zimbabwe dollars, there was no attempt to justify the award in United States dollars. Thus, there was no enquiry on the issue of quantum.  In Redstar Wholesalers v Mabika SC52-05, this Court reiterated the settled principle that in assessing damages flowing from the loss of employment, a court is not entitled to simply pluck figures from thin air and make them the basis of an award. Instead, the court is required to hear evidence before assessing such damages.

Further to the above, an award of damages for thirty six months was issued.

It is trite that when considering the length of time a dismissed employee is likely to take before finding alternative employment, the court must hear evidence from the affected employee. It is not in dispute that in this case no evidence was adduced as to the length of time Mudavanhu would be expected to reasonably take to find employment. An employee who has been dismissed is legally obliged to mitigate his damages by finding alternative employment at the earliest opportunity. The arbitrator failed to take this principle into account in his assessment of the damages claimed by the respondent. The Labour Court, in turn, misdirected itself by failing to give effect to the stated principle and confirmed the award despite the error on the part of the arbitrator.

The undisputed facts are these.

On 2 August 2000, the respondent, who was in the appellant's employ, was suspended from work for alleged misconduct pending the determination of an application by the appellant to dismiss him (application made in terms of S.I.37 of 1985 which was then applicable.). On 12 July 2002, a labour officer found that there were no grounds for the respondent's dismissal and ordered his reinstatement without loss of salary or benefits. Alternatively, the labour officer ordered that the respondent be paid an agreed exit package as cash in lieu of reinstatement.

A dispute thereafter arose over both the payment and quantification of the damages ordered. The dispute was initially placed before an arbitrator who sadly passed on before it could be resolved. In 2011, the matter was finally taken over by another arbitrator, who, on 12 March 2012, awarded the respondent back pay and benefits from the date of suspension (2 August 2000) to the date reinstatement was ordered (12 July 2002). The arbitrator, in addition, awarded the respondent 36 months' damages in lieu of reinstatement, which were denominated in Zimbabwe dollars. The arbitrator went on to convert this amount, and the amount representing backpay and benefits, at the rate of 1USD-ZIM$55=04 and came up with a combined total of USD28,154=26. 

This is the award that the court a quo upheld and against which this appeal has been filed.

The point in limine raised by the appellant is to the effect that the respondent's claim has prescribed. The court heard argument on this point but reserved its judgment on it. The parties then proceeded to argue the merits of the matter.

I will deal first with the point in limine, and the court's ruling on this point will determine whether or not it is necessary to consider the merits of the dispute….,.

2. Merits

I will now turn to the merits of the appeal.

The appellant raises two main grounds of appeal, as follows;

(i) The Labour Court grossly misdirected itself in upholding the arbitrator's award of 36 months' damages to the respondent when, in fact, there was no evidence on record to support this finding.

(ii) Whether the respondent was entitled to damages in lieu of reinstatement (including backpay) denominated in US Dollars when the lawful currency of Zimbabwe at the date the order of reinstatement or payment of damages was made (July 2002) was Zimbabwe dollars, and, further, when the cause of action arose, and the alleged damages were suffered, in Zimbabwe dollars.

It is evident from the appellant's grounds of appeal that it does not take issue with the award, per se, of back pay and damages to the respondent. The appellant does not question the amounts cited as representing the respondent's salary for the period August 2000 to July 2002, nor that the latter should be the cut-off date for calculating both the back-pay and damages. Rather, the appellant's concerns are centred on the period of 36 months awarded in terms of damages and the conversion of both amounts from Zimbabwe to United States dollars. Accordingly, the arbitrator's award to the respondent in terms of backpay and benefits from August 2000 to July 2002, stands uncontroverted. This amount, according to the arbitrator's calculations…, adds up to Z$446,442=. 

The court a quo's decision in respect of this amount, will, accordingly, be upheld.

2.1 The award of 36 months' damages

It has already been observed that the appellant initially brought his claim for quantification of damages before a labour officer. It is noted in the arbitrator's award that the matter was subsequently referred to an arbitrator, a Mr M.T. Vareta who unfortunately passed on before he could finalise the matter. It is not clear from the record what specific terms regulated the mandate of the arbitrator in casu, in relation to the proceedings before the first arbitrator. What is, however, implied by both parties, through their references to it, is that oral argument on the dispute was heard before Mr Vareta. The appellant refers to what was said in cross-examination by the respondent on the issue of mitigation of his loss. The respondent, on the other hand, alludes to the oral proceedings before Mr Vareta, and avers that evidence relating to his age, his qualifications, and health had been led in relation to the issue of quantification. Whatever the truth of the matter might be, the arbitrator in casu makes no direct reference to the evidence placed before Mr Vareta nor, specifically, whether he determined the issue pertaining to the quantification of damages in lieu of reinstatement based on what had been submitted before Mr Vareta. All the arbitrator said was:

“It is of course trite that in considering the amount of damages to be paid, what should be considered is the period of time it would have taken a dismissed employee to find alternative employment and allow him that period's salary as damages. It is my considered view that the claimant could have gotten reasonable alternative employment in 3 years' time (36 months) considering his age, health and qualifications. See Baison Ncube v Delta Beverages LC/MT/81/87. Claimant is therefore entitled to 36 months' salary as damages - albeit in US dollars.”…,.

It is pertinent to note that the arbitrator did not specify the respondent's age, health, and qualifications that he mentioned. The period of 36 months, according to his award, was to be reckoned from 12 July 2002, the date on which reinstatement or damages in lieu thereof, was ordered by the labour officer. While the arbitrator gives the impression that he considered the respondent's age, health, and qualifications in computing the period for which the damages in question were to be paid, it is not in dispute that, with the consent of the parties, he determined the matter on the basis of written submissions from them. In his summary of the respondent's submissions before him, the arbitrator makes no reference to the fact that the respondent had made any allusion to his health, age and qualifications as a basis for his claim for damages. The respondent avers, a fact which is denied by the appellant, that he submitted before Mr Vareta, details concerning his age, qualification and health status in relation to the question of damages.  It is significant that he does not state that he placed this evidence before the arbitrator in casu.

I find, in view of this, that there is merit in the appellant's submission that the arbitrator erred by awarding the respondent 36 months damages in lieu of reinstatement without hearing any evidence as to his age, health, and qualifications. The court a quo, being none the wiser concerning whether or not the arbitrator had direct knowledge of these issues, resorted to speculation and stated as follows in its judgment;

“It is important to observe that, even though the record before the court does not show such, the age, health, and professional qualifications of the respondent would have been placed before the arbitrator at the pre-arbitration hearing by the parties concerned.”

I am persuaded by the appellant's submissions that the court a quo misdirected itself by going beyond what was placed before it to speculate on what might or might not have been placed before the arbitrator.  The parties, as indicated, were not in agreement on this point. The arbitrator did not allude to the fact that he had before him, either at pre-arbitration or arbitration level, a record of the incomplete proceedings commenced before the late Mr Vareta, nor what details, if any, such record might have contained on the issue. More importantly, whether, and on what basis, it would have been proper for him to rely on such evidence. Clearly, there was no basis for the court a quo to make, much less rely, on this particular speculation. Even assuming that the court's speculation was correct, that the arbitrator must have had before him the details in question, this did not absolve the court from its obligation to assess the evidence in question and satisfy itself that the decision of the arbitrator was justified on such evidence.

I find that the court a quo, as an appellate court, abdicated its responsibility in this respect.

The upshot of all this is that in the absence of any evidence on this point being led before the arbitrator, no reliable evidence was placed before the court a quo, nor this court, to support a finding that the arbitrator properly took into account the respondent's health, age, and qualifications in assessing the period for which the damages concerned were to be paid. Further to this, I find that the appellant is correct in its assertion that the arbitrator compounded his error by not, additionally, considering other factors normally taken into account in making assessments of this nature. Specifically, he did not consider whether or not the respondent made any effort to mitigate his loss, nor the economic environment prevailing in 2002, and the prospects, if any, that such environment offered in terms of alternative employment. The arbitrator's approach, which the court a quo endorsed, is the type that is described as 'wrong' in the following dictum from the case of Redstar Wholesalers v Edmore Mabika SC52-05 and correctly cited by the appellant;

“The Labour Court's approach was wrong and its consequent ruling grossly unreasonable. The court is not entitled to pluck a figure out of a hat because it is of the view that this figure 'meets the justice of the case'. Instead, the court is required to hear evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment.”

These words apply with equal force to an arbitrator seized with a similar matter and are eminently apposite in casu.

While ordinarily the remedy would have been for this court to remit the matter to the court a quo for the hearing of evidence on the factors requisite for a proper assessment of the damages in question, I take the view that this is not a proper case for such action. Firstly, this dispute has dragged on for some 15 years and remitting the matter would only lengthen the delay and frustrate efforts to bring finality to this litigation. Secondly, but for the respondent's age and health status, this court has before it the requisite evidence and is in as good a position as any other court to reasonably assess the damages in question.

The appellant argues, correctly, that the respondent, by his own admission, took no effort to secure alternative employment, but had simply decided to settle into a life of subsistence farming. He had therefore neglected to discharge the duty, as was incumbent upon him, to mitigate his loss. The respondent, in my view properly, did not make the argument that subsistence farming could be viewed as alternative employment for him.

The duty to mitigate one's loss has been emphasized in a plethora of case authorities. See, for instance, Gauntlet Security (Pvt) Ltd 1997 (1) ZLR 417 (S); Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 (S); Madyara vs Globe and Phoenix Industries (Pvt) Ltd 2002 (2) ZLR 269 (S). It has a direct bearing on the assessment of appropriate damages in lieu of reinstatement. The respondent's failure to make the attempt accordingly works to his detriment in this respect.

The appellant also alludes to the economic environment prevailing in 2002, and, in my view, correctly asserts that it was more conducive in terms of employment prospects than later became the case. It is the appellant's submission, therefore, that the respondent should have been able to secure alternative employment within a period of three months had he taken the trouble to look for it.

I find that there is merit in these submissions.

The record shows that the respondent was a fork lift driver, therefore a skilled worker. This Court takes judicial notice of the fact that in 2002, the economic meltdown of 2006-2009, and its' devastating effects on employment prospects, wages, salaries, and the cost of living generally, was some four years into the future. The economy was in a much more robust state than what it descended into post-2006.  My view is that it should have been possible for the respondent, had he been so inclined, to obtain alternative employment within a much shorter period than that assessed by the arbitrator. It follows that 36 months' salary, as a measure of damages in lieu of damages, was not only excessive given the period in question, it resonated more with the turbulent economic environment prevailing in the country after 2006. The arbitrator and the Labour Court appear not to have taken this important dynamic into consideration.

I find, in the final analysis, and despite the fact that the court is in the dark as to what his age or health status was, nor how much experience he had garnered during his employment with the appellant, that the respondent did not prove a case for the 36 months' damages awarded to him by the arbitrator.

2. Whether the court, in ordering the reinstatement of the respondent, failed to apply the law which unequivocally requires an employee who has been unlawfully dismissed to seek alternative employment.

Two legal principles were violated by the order of the court a quo.

(i) The first is that when a court makes an order for reinstatement it must also make an order for damages as an alternative to reinstatement.

This is because of the time honoured principle of the common law that an employer is not to be compelled to retain in his employ an employee whom he no longer wishes to employ by virtue of the fact that the relationship between the employer and the employee has soured beyond reconciliation.

See Hama v National Railways 1996 (1) ZLR 664…,; Winterton Holmes & Hill v Paterson 1995 (2) ZLR 68 (S); Commercial Careers College (1980) (Pvt) Ltd v Jarvis 1989 (1) ZLR 334 (S).

(ii) The second is that an employee who has been unlawfully dismissed must mitigate his damages by seeking alternative employment.

A court, in assessing damages, is required to assess, after hearing evidence, the period within which the employee could reasonably expect to obtain employment.

See Ambali v Bata Shoe Co Ltd 1999 (1) ZLR 417 (S).

The order deeming reinstatement in the event of failure to complete fresh proceedings within 30 days has the effect of denying the respondent its right to an alternative of paying damages in a properly quantified amount.

2. Order for payment of damages in the absence of evidence on that issue

Having determined, as I have done, that the disciplinary hearing in casu was conducted before a properly constituted disciplinary authority, the question arises as to the competency of the award of damages granted to the respondent by the court a quo.

In this respect, I make the following pertinent observations:

(1) After upholding the arbitrator's finding on the constitution of the disciplinary body that considered the charges against the respondent, the Labour Court declared that the proceedings in question were a nullity as “the irregularity was so gross as to vitiate the proceedings.”;

(2) The court a quo also dismissed, as no longer appropriate, the need to remit the matter to the appellant for a hearing de novo, since the respondent had already found employment elsewhere, and;

(3) The court, accordingly, varied the arbitrator's award to the extent that the damages ordered by the arbitrator would be reckoned from the date of the respondent's dismissal to the date she found alternative employment.

The appellant takes issue with the substituted award of damages and contends that the court a quo erred by awarding damages in the absence of a specific finding, on the merits, that the respondent was not guilty of any misconduct.

There is, in my view, merit in this contention.

I hold that, having resolved not to remit the matter to the appellant for a hearing de novo, it behoved the Labour Court to hear evidence on the matter of the respondent's culpability and damages, if any. The record of the proceedings in the Labour Court shows that the respondent's counsel conceded that the arbitrator 'erred' by quantifying the damages to be paid to the respondent without hearing evidence on the subject from the parties. The respondent's counsel then submitted as follows:

“But (that) does not validate award. Court can remit for arbitrator to hear evidence or court can hear evidence on quantification”…,.

Instead of doing just that, the Labour Court simply set aside the arbitrator's award of damages and fell into the same error as the arbitrator, by substituting the award in the absence of any evidence having been led on the issue. That award, in addition to not having been requested by the respondent, is without any discernible basis. It invokes the commonly used catch phrase: 'plucked from the air.' This Court has expressed itself on numerous occasions on the undesirability of the court proceeding in this manner. A case in point, which authoritatively highlights this position, is Red Star Wholesaler v Mabika SC52-05, where the court stated as follows:

“The Labour Court's approach was wrong and grossly unreasonable. The court is not entitled to pluck a figure off a hat because it is of the view that this figure 'meets the justice of the case.' Instead, the court is required to hear evidence as to how long it would reasonably have take a person in a position of the dismissed employee to find alternative employment.”

I find by parity of reasoning, that this dictum, albeit referring to a specific figure of damages, applies with equal force in casu.

I might add that apart from hearing evidence on how long it might have reasonably taken the respondent to secure alternative employment, the Labour Court should also have heard evidence on what steps, if any, the respondent had taken to mitigate her loss. 

A clear misdirection on the part of the Labour Court is therefore evident.

Be that as it may, the finding of this Court, that the disciplinary proceedings in question were conducted before a properly constituted disciplinary authority has the effect of reversing the Labour Court's determination that the same proceedings were null and void. This takes the matter back to the situation where the disciplinary hearing against the respondent was validly conducted. The arbitrator heard and granted the respondent's appeal against the dismissal that followed this hearing. The court a quo, having dismissed the appellant's appeal against the arbitrator's award, the status that now obtains is one where a determination still has to be made as to whether or not, on the merits, the respondent was lawfully dismissed and therefore entitled to damages.

It goes without saying that such damages would need to be properly proved. The Labour Court, as indicated, did not consider the merits of the appeal that was before it. Thus, its substitution of the arbitrator's award of damages with one of its own, was not premised upon a valid finding of wrongful dismissal.

In the result, I find that the appeal has merit and ought to be granted. The matter will be remitted to the Labour Court for a hearing of the appeal in this matter on the merits….,.

Accordingly, it is ordered as follows:

1. The appeal is allowed with no order as to costs;

2. The judgment of the Labour Court is hereby set aside, and

3. The matter be and is hereby remitted to the Labour Court for a determination on the merits relating to:

(i) The lawfulness, or otherwise, of the respondent's dismissal by the appellant; and

In any event, the Order of the court a quo was incompetent as it sought to order the National Employment Council to reinstate the respondent without making a corresponding order for damages in the event that reinstatement was no longer possible.

This Order did not comply with the law.

In terms of section 89(2)(c)(iii) of the Labour Act [Chapter 28:01], an order for reinstatement must have a corresponding order for damages in the event that reinstatement is no longer possible. This position has been set out in a number of decisions.

This is an appeal against the quantum of damages in lieu of reinstatement that was awarded to the respondent by the arbitrator and upheld, on appeal, by the Labour Court.

The respondent was employed by the appellant as a Farm Manager in November 2008. On 30 November 2009, without any prior warning, the respondent, through a letter, was given a month's notice of termination of his services, effective from 1 December 2009 to 31 December 2009. The respondent was also asked to vacate the farmhouse and move off the property by not later than 31 December 2009.

On 21 December 2009, the appellant paid the respondent $2,100= broken down as follows:

(a) $900= which was due in respect of payment shortfalls for the months of December 2008, January 2009 and February 2009.

(b) $600= for 26 days of leave pay; and

(c) $600= being 2 months' pay as a termination benefit (for December 2009 and January 2010).

On 8 February 2010, the respondent wrote a letter of complaint to a Labour Officer and requested that there be a hearing which would facilitate the payment of what he claimed to be due to him by the appellant. The process culminated in the issuance of a certificate of no settlement and the matter was referred for compulsory arbitration.

The issues for determination by the arbitrator were stated as:-

1. To determine whether the dismissal was lawful and fair.

2. To determine the nature of contract, whether open ended or not.

3. To determine the quantum of terminal benefits.

 4. To determine the appropriate remedy.

The initial arbitral award made by the arbitrator is not on record. What is on record is the award of 21 July 2010. Therein, the arbitrator stated that the matter was before him for quantification of damages. He stated that in his (earlier) award he had requested the parties to negotiate on the quantum but they had failed to reach agreement. He stated that from the submissions by both parties it was clear to him that the parties were agreed on the headings under which remuneration was due to the respondent but were not agreed on the quantum. He listed the agreed headings as:

(a) Salaries.

(b) Medical Aid.

(c) School fees.

(d) Accommodation.

(e) Fuel.

(f) Domestics/Utilities.

(g) Electricity and water.

(h) Tobacco seed.

(i) Leave entitlements.

The arbitrator proceeded to award specific amounts in favour of the respondent for each of the headings as well as an additional one titled “commission.” The awards that the arbitrator made in respect of salaries, accommodation, fuel, domestic/utilities as well as electricity and water were calculated on the basis of a monthly figure multiplied by nine months. Regarding medical aid, the arbitrator determined that he would grant the respondent one year's cover instead of the two years that he was claiming. On school fees, he awarded an amount that he said was the 3^rd term fees for that year as well as an additional amount for which he gave no explanation. Under the heading 'tobacco seed' the arbitrator calculated what was due to the respondent on the basis of a percentage of the 2009 harvest. He justified this on the ground that the then current season's tobacco had not been sold yet. He used the same method for an award under the heading 'commission', which he also based on a percentage of the 2009 harvest.

The amounts thus awarded totalled $35,434=.

It is apposite to state at this juncture that the respondent accepted alternative employment with effect from May 2010. He was thus out of employment for four months. His new monthly salary was $500= gross without any benefits. His payslip was produced as proof thereof.

The appellant was aggrieved by the arbitrator's decision and appealed to the Labour Court on the following grounds:-

1. The learned arbitrator erred in law in failing to appreciate that the onus lay on the respondent to prove his claim. Hence the respondent should have adduced evidence to substantiate figures he gave for the sale of tobacco crop and tobacco seed respectively.

2. The learned arbitrator grossly misdirected himself in awarding commissions on tobacco crop and tobacco seed based on the sales figures of the 2009 crop.

3. The learned arbitrator erred in law in awarding medical aid in the absence of proved medical expenses.

4. The learned arbitrator erred in law in failing to appreciate that when assessing damages, consideration should be had to the fact that the respondent was now working and accordingly his earnings and benefits should have been taken into account in assessing the sum due.

5. The learned arbitrator erred in being satisfied that the appellant had proved his damages on a balance of probability.

6. The learned arbitrator erred in finding that sufficient evidence had been produced by the appellant to prove its claim.

7. The learned arbitrator misdirected himself in making an award for the period he did.

The Labour Court dismissed the appeal and upheld the arbitrator's quantification of damages payable to the respondent in the amount of $35,434=. In its reasons, the Labour Court stated, inter alia, that the arbitrator indicated in his award that evidence was led before he made the determination of the appropriate amounts due and payable to the respondent. The court a quo further indicated that it had no reason to doubt that evidence was led in support of the claim and that such evidence formed the basis of the learned arbitrator's award.  It went on to make the following remarks:-

“It was submitted, on behalf of the respondent, that while the respondent may have secured alternative employment, such alternative employment paid the respondent considerably less than what he used to get. It is not disputed that where such a situation exists, the employee is entitled to compensation of the difference (between the former earnings and the alternative employment secured) in both salary and benefits in order for justice to be done. I have satisfied myself that evidence was led in the earlier tribunal. It follows that the necessary considerations were made before the award was made.”

The appellant has now appealed to this court against the decision of the Labour Court on the following grounds:-

1. The court a quo erred in law by upholding an award of damages for any period in excess of the period which respondent was actually out of employment.

2. The court a quo erred in law in upholding (without stating reasons for doing so) an award for payment in respect of a commission that had not yet accrued.

3. The court a quo erred by upholding (without stating reasons for doing so) an award for medical aid in the absence of any evidence that the respondent had in fact incurred medical expenses.

 4. The court a quo erred in finding that the arbitrator received evidence as to:

(i) The time it would have taken the respondent to find alternative employment: and

(ii) The disparity, if any, between the respondent's actual earnings and his notional earnings from comparable employment.

(iii) The error was so gross as to amount to an error of law.

5. The court a quo consequently erred in law by upholding findings made by the arbitrator with no evidentiary basis.

It is not in dispute that the respondent was out of employment for a period of four months after which he accepted a job with less remuneration. The arbitrator however went on to award damages for a period of nine months. A perusal of the record, including the arbitral award, does not support the finding of the court a quo that there was any evidence led to justify the computation done by the arbitrator. The nine month period and the amounts granted under the various headings are not based on any evidence that was placed before the arbitrator. No such evidence is reflected on the record. No basis was laid for picking on the nine month period and not any other period.

The onus was on the respondent to prove that he was owed more than what the employer paid him. He did not discharge that onus.

Counsel for the respondent conceded as much before this court.

This inescapable concession by counsel for the respondent resolves this appeal. She rightly conceded that the court a quo seriously misdirected itself by upholding awards that were made without any legal basis. The arbitrator having had no basis to make them, the court a quo had no basis to confirm such awards on appeal; no evidence having been placed before the court a quo to substantiate such quantification.

The lower court's decision is therefore founded on a misdirection.

The case of Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417, that was cited by the respondent, is of no avail to his case for it merely states that an employee who has been wrongfully dismissed has an immediate duty to mitigate his loss. It also places a limit on the period for which damages may be payable, to the period between the date of dismissal and the date when new employment is found.

In casu, the respondent was out of employment for four months. Thus, the quantification of damages ought to have been based on the four month period. As already noted earlier, the nine month period used in the computation of the amount granted in the arbitral award has no basis or explanation and is completely arbitrary.

Despite making reference to Ambali v Bata Shoe Company Ltd 1999 (1) ZLR 417 and Zupco v Daison 2002 (2) ZLR 628, the court a quo failed to point to the evidence on which the arbitrator's quantification was based. It appears to have acted on the premise that the arbitrator must have received the necessary evidence. The court a quo itself did not hear any evidence that would justify the quantification from the respondent.

As counsel for the respondent rightly conceded, there is no such evidence on the record.

In Zupco v Daison 2002 (2) ZLR 628, SANDURA JA stated:

“…, in its judgment, the Tribunal did not say why it chose the period of forty-eight months as opposed to any other period. As stated in Nyaguse v Mkwasine Estates (Pvt) Ltd 2000 (1) ZLR 571 (S) at 575D;

'If the tribunal is forced to make an estimate, it must use the information to hand, and not simply pluck a figure from nowhere.'

In the circumstances, I am satisfied that the Tribunal's decision can be categorised as wholly unreasonable…..,.”

Likewise, in casu, the award of damages for a period in excess of four months was wholly unreasonable.

This court was also referred to Duly Holdings Limited v Clever Spanera 2005 (1) ZLR