adminAct, that backpay and benefits are to be calculated from date of dismissal to the date of the first order ordering reinstatement (Ref. First Banking Corporation Ltd versus Balthazar Zindoga Marimo, SC 57/2005)
Calculation should not be from the date when the court confirms the arbitral award.
As for damages, these are paid, calculated on the basis of the length of time, which it would reasonably take the worker to obtain alternative employment.
This is calculated from the date of dismissal and the rate to be used is that pertaining at the date of the order of reinstatement.
Further, the benefits claimed must be those which arise from the contract of employment, that is, ex-contract (Ref. Red Star Wholesalers versus Edmore Mabika, SC 52/2005).
It is also a trite position of the law that a dismissed employee has an obligation to mitigate his loss by looking for alternative employment.
He must look for and accept any reasonable offer of alternative employment. He or she should not just sit back and do nothing (see Charles Amabli versus Bata Shoe Company, SC 56/1999 and also Gauntlet Security Services versus Rodgers Leonard, SC 88/97).
The Associated Newspapers of Zimbabwe employed Tendai Nyakunu as a deputy editor when he was unprocedurally dismissed on May 3, 2003.
On June 14, 2005 an Arbitrator issued an award ordering ANZ to reinstate Nyakunu without loss of salary and benefits with effect from the date of dismissal. On February 25, 2011 the Labour Court confirmed the arbitral award with the addition that Nyakunu be paid damages in lieu of reinstatement.
ANZ opted to pay damages and this gave rise to the application for quantification of damages by Nyakunu.
Nyakunu was claiming a total of US$600 000.
According to the claim for basic salary, between 2003 and 2008 he claimed US$92 962, while between 2009 and 2011 he claimed US$140 000. Nyakunu also claimed allowances such as entertainment, telephone, school fees, transport, medical aid as well as punitive damages and emotional trauma.
To substantiate his claim, he stated in his affidavit that it was for damages he suffered emotionally and psychologically as a result of the unfair dismissal.
Nyakunu said he also lost opportunities as a result of ANZ publishing in the paper that he had been dismissed. This, he claimed, made it impossible for him to work as a journalist anywhere in the country. He calculated the basic salary of a deputy editor at the rate of US$5 000 per month form 2009 to 2011. From 2003 to 2008, he converted the Zimbabwean dollars to United States dollars. It was clear from the arbitral award that reinstatement was with retrospective effect and therefore back pay and benefits were to be paid calculated from the date of dismissal, that is May 3, 2003.
It is common cause that for the period May 3, 2003 and June 14, 2005, Nyakunu’s salary was in Zimbabwean dollars. According to the pay slip he submitted, the basic salary was Z$600 000 per month.
He was also getting telephone and entertainment allowances in the sum of Z$11 403 per month for each.
His total back pay for the period of two years, one month and 11 days (that is 25 months and 11 days) subject to statutory deductions was Z$15 220 000.
The total for the allowances was Z$578 492.
However, no legal basis could be found to grant the back pay and benefits in US dollars as claimed by Nyakunu. Following the Supreme Court decision in the case Central African Batteries vs John Mhangu, this amount is to be converted to US dollars.
In view of the lengthy delay occasioned in finalising this matter and to ensure finality in litigation, it would be inconvenient to refer the matter back to the parties to agree on the rate to be used. It would be ideal to direct that the rate to be used by the Reserve Bank of Zimbabwe official rate pertaining at the date of the order of reinstatement, that is June 14, 2005.
From the evidence before the court, it was clear that Nyakunu did nothing towards finding alternative employment. According to his affidavit, his name was tarnished by the publication made by ANZ. Nyakunu did not furnish the court with such a publication.
It is therefore difficult to accept that there was such a damning publication, which made it impossible to secure alternative employment. Further, there was no proof submitted like a passport, or letters of regret to show that he went to Botswana to look for employment.
Moreover, according to his submissions, Nyakunu was expecting to get the very same position he was in with ANZ instead of looking for any reasonable offer of employment. Nyakunu did himself a disservice in that regard. However, ANZ was offering him an equivalent of six months salary, that is, a sum of US$2 259 as damages for loss of employment.
As regards punitive damages, none of the orders ordered punitive damages. Section 89 (2) (iii) of the Labour Act cited by Nyakunu in his heads of arguments to support the claim was ill-placed.
Punitive damages in that Section are awarded as a result of an application made in terms of Section 93 (7) (ii) of the same Act. This was not the position in casu.
The application for quantification damages by Nyakunu did not arise out of Section 93 (7), but as a result of an appeal in terms of Section 98 (10) of the Act. Emotional and psychological damages are delictual and cannot be granted.
As for medical aid, according to the payslip, ANZ made contributions to the service provider, not direct to Nyakunu. It was therefore up to Nyakunu to provide proof of medical expenses he incurred so that he gets a refund from ANZ. After considering all submissions, Labour Court senior president Ms Gladys Mhuri ruled that Nyakunu was entitled to his backpay and benefits and six months salary as damages.
She ordered ANZ to pay him Z$15 220 000 (to be taxed) and Z$578 492, with the total to be converted to United States dollars.
Online Reporter