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have to be computed in Zimbabwe dollars, a currency that was no longer
applicable in our country.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.
3. Both respondents to pay cost of suit.
