No. SC 42/03
Appeal No. 201/01
AND TELECOMMUNICATIONS CORPORATION
P G SWABATA
COURT OF ZIMBABWE
CJ, ZIYAMBI JA & MALABA JA
SEPTEMBER 9 & NOVEMBER 28, 2003
for the appellant
for the respondent
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:
the respondent (now the appellant) be and is hereby ordered to pay
the applicant damages in lieu of reinstatement equivalent
salary and benefits from the date of dismissal to the date he would
have been retrenched had he remained in employment plus
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.
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.
respondent is to bear the costs of these proceedings.
will refer to the parties as the PTC and Swabata.
order of the Tribunal was made following a declaration by the
Tribunal on 28 March 2000 that the dismissal of Swabata by
PTC on 15 April 1996 was wrongful. The PTC had on 28 March
2000 been ordered to reinstate Swabata in his job as a
loss of salary or benefits or pay him damages in lieu of
reinstatement. The parties had been given the opportunity
on the quantum of damages, failing which either party had the right
to refer the question of assessment of the damages to
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
the hearing before the Tribunal Swabata gave evidence. He indicated
that at the time of his dismissal from employment he worked
PTC in Kwekwe as a clerk. He has three O-Levels and a Class 2
drivers licence. He was aged fifty years
at the time of giving
was Swabatas evidence that during the period of dismissal from
employment he looked for a job as a clerk without success.
attended an interview for a clerical job with Alcatel in November
1996 but never received communication of the results thereof.
made numerous applications for clerical jobs in newspapers, only to
receive regrets. Mr Swabata could not produce the
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
disclosed that during the same period he occasionally worked as a
tractor driver at his brothers farm, for which
he would be given a
bag of mealie meal and cash varying between $500 and $1 000 per
also disclosed that workmates who were younger than him were
retrenched by the PTC in December 1999. They had
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.
PTC opposed Swabatas claim. It argued that a clerk with
Swabatas educational qualifications and experience would
have been expected to obtain alternative employment as a
clerk within one year of his dismissal. The fact that he did not
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 Swabatas 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
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.
question for determination by this Court is whether or not the
learned chairman of the Tribunal ordered the parties to apply
correct principles in calculating the amount of damages payable to
PTCs 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
the learned chairman of the Tribunal misdirected himself in law as to
the criteria to be taken into account in assessing the damages.
first principle to be borne in mind for purposes of assessing damages
in such cases is that the damages should be the direct or
consequence of the wrongful dismissal of the employee from
employment. The measure of the damages is the amount of wages
salary and benefits the employee would have been entitled to receive
but for the wrongful termination of employment. The damages
assessed from the date of wrongful dismissal to the date of the order
Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583 (S) GUBBAY CJ said at 586 C-E:
employee is entitled to be awarded the amount of wages or salary he
would have earned save for the premature termination of his
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.
general principle regarding the measure of damages flowing from
wrongful dismissal where reinstatement is not an acceptable
was again stated in Ambali
v Bata Shoe Company Ltd
1999 (1) ZLR 417 (S), where it is stated in the headnote that:
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
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:
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.
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
bearing, not only on the extent of the damages to be awarded, but
also whether he is entitled to any damages at all.
the Gauntlet Security
GUBBAY CJ went on, after stating the general principles,
the employee must mitigate his loss. He cannot just do nothing.
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
in respect of the remuneration he would have earned from the
McNALLY JA said at 418H-419D:
think it is important that this Court should make it clear once
and for all that the employee who considers, whether rightly or
wrongly, that he has been unjustly dismissed is not entitled to
around and do nothing. He must look for alternative employment.
If he does not his damages will be reduced. He will be
only for the period between his wrongful dismissal and the date when
he could reasonably have expected to find alternative
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.
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
employees 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
the date of the order for reinstatement less what he may have earned
in temporary or intermittent employment.
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
would have been the one in the wrong.
is, therefore, only where there is evidence that the employee did not
look for alternative employment that the damages would
from the date of wrongful dismissal to the date he would reasonably
have been expected to find alternative employment.
must in that event have evidence adduced and make a definite finding
on when the employee could reasonably have expected
alternative employment. See Clan
Transport Company (Pvt) Ltd v Clan Transport Workers Committee
S-1-02 at p 3.
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
damages payable to Swabata should be calculated from the date of
wrongful dismissal to a date he would have been retrenched had
remained in employment.
learned chairman of the Tribunal misdirected himself on the principle
that the employee who is found to have done everything
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.
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
the wrongful termination of employment. The employee would not have
been entitled to be retrenched.
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
appeal succeeds with costs. The order of the Tribunal is set aside
and in its place substituted the following
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
from the date of wrongful dismissal (15 April 1996) to the date
of the order of reinstatement (28 March 2000) less
amounts he earned during the periods of temporary employment as a
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.
respondent is to bear the costs of these proceedings.
CJ: I agree.
JA: I agree.
Welsh & Guest,
appellant's legal practitioners
Godlonton & Gerrans,
respondent's legal practitioners