Court name
Supreme Court of Zimbabwe
Case number
SC 42 of 2003
Civil Appeal 201 of 2001

Posts and Telecommunications Corporation v Swabata (01/01) (SC 42 of 2003, Civil Appeal 201 of 2001) [2003] ZWSC 42 (27 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 42



10


SC
42/03















REPORTABLE
(36)


Judgment
No. SC 42/03


Civil
Appeal No. 201/01








POSTS
AND TELECOMMUNICATIONS CORPORATION





v
P G SWABATA








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
SEPTEMBER 9 & NOVEMBER 28, 2003








H
Zhou
,
for the appellant





A
M Gijima
,
for the respondent





MALABA
JA: This is an appeal against an order of the Labour Relations
Tribunal (“the Tribunal”) dated 11 June 2001,
the terms of
which were as follows:





“That
the respondent (now the appellant) be and is hereby ordered to pay
the applicant damages in lieu of reinstatement equivalent
to his
salary and benefits from the date of dismissal to the date he would
have been retrenched had he remained in employment plus
the
retrenchment package he would have been paid had he not been
unlawfully dismissed less whatever he could have earned as a tractor
driver up to the time of retrenchment.





In
the event of any dispute arising as to the actual calculation of any
amount either party is free to approach the Tribunal for
quantification of the amount in dispute.





The
respondent is to bear the costs of these proceedings.”





I
will refer to the parties as “the PTC” and “Swabata”.





The
order of the Tribunal was made following a declaration by the
Tribunal on 28 March 2000 that the dismissal of Swabata by
the
PTC on 15 April 1996 was wrongful. The PTC had on 28 March
2000 been ordered to reinstate Swabata in his job as a
clerk without
loss of salary or benefits or pay him damages in lieu of
reinstatement. The parties had been given the opportunity
to agree
on the quantum of damages, failing which either party had the right
to refer the question of assessment of the damages to
the Tribunal.





The
PTC elected to pay Swabata damages but failed to agree on the
measures for their calculation. The matter was referred to the
Tribunal, not for assessment of the damages, but for a declaration of
the principles to be applied in the calculation of the amount
of the
damages.





At
the hearing before the Tribunal Swabata gave evidence. He indicated
that at the time of his dismissal from employment he worked
for the
PTC in Kwekwe as a clerk. He has three “O-Levels” and a Class 2
driver’s licence. He was aged fifty years
at the time of giving
evidence.





It
was Swabata’s evidence that during the period of dismissal from
employment he looked for a job as a clerk without success.
He
attended an interview for a clerical job with Alcatel in November
1996 but never received communication of the results thereof.
He
made numerous applications for clerical jobs in newspapers, only to
receive regrets. Mr Swabata could not produce the
letters of
regret when challenged to do so during cross-examination. It was
his belief that he could not get alternative employment
as a clerk
because of his old age, low educational qualifications and closure of
companies.





Mr Swabata
disclosed that during the same period he occasionally worked as a
tractor driver at his brother’s farm, for which
he would be given a
bag of mealie meal and cash varying between $500 and $1 000 per
month.





Mr Swabata
also disclosed that workmates who were younger than him were
retrenched by the PTC in December 1999. They had
been given
retrenchment packages calculated on one-and-a-half months’ salary
multiplied by the number of years of service. He
said he would have
accepted an offer to be retrenched had he been in employment with the
PTC at the time. As a result Swabata claimed
damages in an amount
equivalent to the retrenchment package he would have received had he
been in employment.





The
PTC opposed Swabata’s claim. It argued that a clerk with
Swabata’s educational qualifications and experience would
reasonably
have been expected to obtain alternative employment as a
clerk within one year of his dismissal. The fact that he did not
land
a job as a clerk and failed to produce the letters of regret
indicated that he did not look for alternative employment. It also
argued that the retrenchment package received by Swabata’s former
workmates had no bearing on the assessment of the amount of damages
which resulted from his wrongful dismissal. A retrenchment package
was not a direct or probable consequence of wrongful termination
of
employment.





In
the first paragraph of his judgment the chairman of the Tribunal
stated that the parties had asked the Tribunal:





“…
to first determine the principle
upon which the amount is to be calculated. Thereafter if there is a
dispute regarding the actual
calculation the Tribunal will be asked
to settle the dispute.”





The
question for determination by this Court is whether or not the
learned chairman of the Tribunal ordered the parties to apply
the
correct principles in calculating the amount of damages payable to
Swabata.





The
PTC’s contention is that the Tribunal directed them to apply wrong
principles. Mr 
Gijima
had suggested that the appeal by the PTC was on a question of fact.
I agree with Mr 
Zhou
that the appeal is on a point of law. The contention is that by
ordering the parties to assess the amount of damages payable to
Swabata by reference to the amount of salary and benefits he would
have earned from the date of his wrongful dismissal
to
the date he would have been retrenched had he remained in employment
plus the retrenchment package he would have been paid had
he not been
unlawfully dismissed
,
the learned chairman of the Tribunal misdirected himself in law as to
the criteria to be taken into account in assessing the damages.





The
first principle to be borne in mind for purposes of assessing damages
in such cases is that the damages should be the direct or
probable
consequence of the wrongful dismissal of the employee from
employment. The measure of the damages is the amount of wages
or
salary and benefits the employee would have been entitled to receive
but for the wrongful termination of employment. The damages
are
assessed from the date of wrongful dismissal to the date of the order
of reinstatement.





In
Gauntlet Security
Services (Pvt) Ltd v Leonard

1997 (1) ZLR 583 (S) GUBBAY  CJ said at 586 C-E:





“The
employee is entitled to be awarded the amount of wages or salary he
would have earned save for the 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.”





The
general principle regarding the measure of damages flowing from
wrongful dismissal where reinstatement is not an acceptable
option
was again stated in
Ambali
v Bata Shoe Company Ltd

1999 (1) ZLR 417 (S), where it is stated in the headnote that:





“Where
a person has been wrongfully dismissed (rather than wrongfully
suspended) from his employment, and seeks damages rather than
reinstatement, he is entitled to be awarded the amount of wages or
salary he would have earned had his contract not been prematurely
terminated. He may also be compensated for any loss of benefit to
which he was entitled and of which he was deprived as a result
of the
wrongful termination.”





On
the use of “back-pay” as the measure for the damages to be
awarded the employee McNALLY  JA, in
Leopard
Rock Hotel Company (Pvt) Ltd v van Beek

2000 (1) ZLR 251 (S) at 255H-256B, said:





“’Back-pay’
is thus a concept associated with reinstatement. If an employee is
reinstated she will normally be awarded back-pay.
If she succeeds
in proving wrongful dismissal, but is not reinstated, she will be
entitled to ‘damages’, a major element of
which will be back-pay.
Perhaps more correctly one should say the damages will be assessed
by reference to the back-pay lost.”





There
is another important principle to be taken into account in the
assessment of the damages in lieu of reinstatement of an employee
wrongfully dismissed. It is that the employee must mitigate his
damages immediately after he is wrongfully dismissed. In other
words, evidence of what the employee did after he was dismissed from
employment by way of looking for alternative employment has
a direct
bearing, not only on the extent of the damages to be awarded, but
also whether he is entitled to any damages at all.





In
the
Gauntlet Security
case
supra
GUBBAY  CJ went on, after stating the general principles,
to say:





“But
the employee must mitigate his loss. He cannot just do nothing.
See
Faberlan
v Mckay & Fraser

1920 WLD 23 at 32;
Bulner
v Woollen Ltd (in liquidation)

1926 CPD 459 at 467-468;
Beeton
v Peninsula Transport Co (Pty) Ltd

1934 CPD 53 at 59. If he fails to take other employment when it
would have been reasonable for him to do so a deduction will be
made
in respect of the remuneration he would have earned from the
substituted employment.”





In
Ambali’s
case
supra
McNALLY  JA said at 418H-419D:





“I
think it is important that this Court should make it clear on
ce
and for all that the employee who considers, whether rightly or
wrongly, that he has been unjustly dismissed is not entitled to
sit
around and do nothing. He must look for alternative employment.
If he does not his damages will be reduced. He will be
compensated
only for the period between his wrongful dismissal and the date when
he could reasonably have expected to find alternative
employment.
The figure may be adjusted upwards or downwards. If he could in the
meanwhile have taken temporary or intermittent
work, his compensation
will be reduced. … if an employee is wrongfully dismissed his
duty to mitigate his loss arises immediately.
If he is offered a
good job the day after his dismissal he must take it or forfeit any
claim for damages.”





The
obligation on the employee is to look for and take alternative
employment if available. The
onus
is on the employer to show that the employee did not look for
alternative employment or that he did not take up a good job when it
was offered to him. Should there be no evidence to refute the
employee’s evidence that he looked for employment without success
he would be entitled to be awarded the amount of the salary and
benefits he would have earned from the date of wrongful dismissal
to
the date of the order for reinstatement less what he may have earned
in temporary or intermittent employment.





In
Nyaguse v Mkwasine
Estates (Pvt) Ltd
2000
(1) ZLR 571 (S), it was held that if the employee had remained
jobless, equity demanded that the employer be the loser because
he
would have been the one in the wrong.





It
is, therefore, only where there is evidence that the employee did not
look for alternative employment that the damages would
be calculated
from the date of wrongful dismissal to the date he would reasonably
have been expected to find alternative employment.
The Tribunal
must in that event have evidence adduced and make a definite finding
on when the employee could reasonably have expected
to find
alternative employment. See
Clan
Transport Company (Pvt) Ltd v Clan Transport Workers Committee

S-1-02 at p 3.





I
turn to the facts of this case. The chairman of the Tribunal found
on the evidence adduced by Swabata that he looked for alternative
employment with no success. That is a finding of fact by the
Tribunal which had the advantage of seeing Swabata give oral evidence
and believed him. The finding is not grossly unreasonable. Having
made that factual finding, the learned chairman ordered that
the
damages payable to Swabata should be calculated from the date of
wrongful dismissal to a date he would have been retrenched had
he
remained in employment.





The
learned chairman of the Tribunal misdirected himself on the principle
that the employee who is found to have done everything
possible to
look for alternative employment with no success should be awarded the
amount of salary and benefits from the date of
wrongful dismissal to
the date of the order for reinstatement. The order he made, that
Swabata be awarded an amount of salary and
benefits he would have
received from the date of wrongful dismissal to the date he would
have been retrenched, is very vague. There
is no principle on the
calculation of damages for breach of a contract of employment which
makes reference to a date the employee
would have been retrenched.
The reason is that it would not be known whether the employee would
have been retrenched and when that
would have happened. In any
case, retrenchment is not an entitlement. It is not something the
employee would have lost by reason
of wrongful dismissal to which he
was contractually entitled.





In
my view, the learned chairman also misdirected himself in ordering
the PTC to award to Swabata an amount equivalent to a retrenchment
package he would have received had he been in employment. The
retrenchment package would not be a direct or probable consequence
of
the wrongful termination of employment. The employee would not have
been entitled to be retrenched.





The
best course to take is to set aside the order made by the Tribunal
and substitute in its place an order reflective of the correct
principles to be applied in the assessment of the damages payable to
Swabata.





The
appeal succeeds with costs. The order of the Tribunal is set aside
and in its place substituted the following –





“The
respondent is hereby

ordered to pay the applicant damages in lieu of reinstatement in the
amount of the salary and benefits which would have been paid
to him
from the date of wrongful dismissal (15 April 1996) to the date
of the order of reinstatement (28 March 2000) less
whatever
amounts he earned during the periods of temporary employment as a
tractor driver.





In
the event of any dispute arising from the actual calculation of any
amount either party is free to approach the Tribunal for assessment
of the amount in dispute.





The
respondent is to bear the costs of these proceedings.”








CHIDYAUSIKU
CJ: I agree.








ZIYAMBI
JA: I agree.








Coghlan,
Welsh & Guest
,
appellant's legal practitioners


Gill,
Godlonton & Gerrans
,
respondent's legal practitioners