Court name
Supreme Court of Zimbabwe
Case number
SC 34 of 2006
Civil Appeal 163 of 2005

United Bottlers v Kaduya (63/05) (SC 34 of 2006, Civil Appeal 163 of 2005) [2006] ZWSC 34 (11 September 2006);

Law report citations
Media neutral citation
[2006] ZWSC 34













REPORTABLE (28)


Judgment
No. SC 34/06


Civil Appeal No. 163/05








UNITED
BOTTLERS v CHARLES KADUYA








SUPREME COURT OF
ZIMBABWE


CHIDYAUSIKU CJ,
SANDURA JA & CHEDA JA


HARARE, JANUARY 16 &
SEPTEMBER 12, 2006








G V Mamvura, for
the appellant





T Sakutukwa, for
the respondent






CHIDYAUSIKU CJ: This is an appeal against a judgment of the
Labour Court. The issue in this case is the quantification of
damages.





The appellant
suspended the respondent from work without pay and benefits on
15 March 1999. The matter was heard before a
labour relations
officer, who ordered that the respondent be reinstated without loss
of pay and benefits, alternatively that he be
paid his wages up to
30 January 2000 plus three months’ pay as damages and cash in
lieu of leave. The appellant took the
matter on review before a
senior labour relations officer. On review the senior labour
relations officer upheld the decision of
the labour relations
officer, but ordered that the wages were to be paid up to 30 June
2000.






The appellant appealed to the Labour Court against the decision of
the senior labour relations officer. The Labour Court directed
that
the appellant comply with the determination of the senior labour
relations officer before its appeal could be heard by it.
The
appellant complied with the determination of the senior labour
relations officer and paid the respondent his pay and benefits
for
the period 15 March 1999, being the date the respondent was
suspended, to 30 June 2000, plus three months’ salary.






While he was on
suspension the respondent secured alternative employment with Bella
Blue Track (Pvt) Ltd with effect from 1 June
2001. He
continued in this employment up to 3 February 2004, a period of
about two-and-a-half years.





When the matter of
quantification came up before the Labour Court, the appellant offered
to pay the respondent his pay and benefits
from 1 October 2000
to 31 May 2001, when the respondent was not gainfully employed.
The Labour Court determined that
the respondent was entitled to his
pay and benefits with effect from the date of his dismissal to the
date of the judgment of the
Labour Court.





It is against this
determination that the appellant appeals to this Court. The learned
President of the Labour Court held that
the respondent had a duty to
mitigate damages and find employment. Accordingly the respondent’s
employment with Bella Blue Track
(Pvt) Ltd had no bearing on the
contract of employment.





The learned
President’s reasoning and conclusion appear on pp 6-7 of the
cyclostyled judgment (LC/H/289/2004), wherein she
said:






“In the present matter the appellant argued that the respondent was
on suspension and by securing alternative employment he repudiated
his contract of employment with the appellant. The respondent
submitted that he secured temporary employment in order to mitigate
his loss. I am of the opinion that he had a duty to do so. To
state that a person who is on suspension without pay and benefits
should not work and if he does work he risks losing his employment
would be contrary to the purpose of the Act.






Further the appellant
submitted that he was available for employment with the respondent
after the court had ordered his reinstatement
with the alternative
for payment of damages. He submitted that it was the appellant who
opted to pay damages and not that he (the
respondent) was not
available for reinstatement.





In view of the above
it is my considered view that the respondent is entitled to his back
pay and benefits with effect from (the)
date of dismissal to the date
of judgment of this court (i.e. forty-seven months’ salary –
item 1 of his claim).





In addition if items
2-4 of his claim were his entitlements he should get them. The
respondent is also entitled to damages, which
is the equivalent of
twenty-four months’ salary. The computation of the amount should
take into consideration –






a) the amount the appellant has already paid to the respondent; and





b) the earnings he got
during the period he had secured alternative employment.






The back pay should be
as at the 1 January 2004 figure – as supplied by the appellant
upon request by the court – i.e. $1 896 044.46.





Accordingly it is
ordered that damages be calculated in terms of the above.”









Mr Mamvura, for the appellant, submitted that the
effect of the respondent taking up employment with Bella Blue Track
(Pvt) Ltd was to terminate
his contract of employment with the
appellant. In support of this submission he cited the case of
Zimbabwe Sun Hotels (Pvt) Ltd v Lawn 1988 (1) ZLR 143 (S),
wherein GUBBAY JA (as he then was) stated at p 151 as
follows:






“Plainly the obligation of an employee who is placed under
suspension to hold himself available to perform his duties if called
upon to do so, is one which arises by operation of law. It is of no
consequence therefore that no provision in that regard is contained
in the contract of service; and it is not necessary for the employer
at the time of suspension to so inform the employee.”






I agree with
Mr Mamvura. His submission reflects the correct
position in law. Where an employee is under suspension and he takes
up employment elsewhere
he terminates his employment. An unlawful
suspension of an employee is a repudiation of the contract of
employment by the employer.
The employee can elect either to accept
the repudiation or enforce the contract. If an employee accepts
alternative employment,
by that fact alone he accepts the employer’s
repudiation and the only remaining remedy for the employee is to sue
the employer
for damages for breach of contract.





The learned President
of the Labour Court fell into error in two respects - firstly, by
equating the position of a wrongfully suspended
employee with that of
a wrongfully dismissed employee. A wrongfully dismissed employee
has a duty to mitigate damages by finding
alternative employment as
soon as possible. A wrongfully suspended employee has a duty by
operation of law to remain available
for employment by his employer.
This is the legal position, as stated in the Zimbabwe Sun
case supra. The issue was further clarified in Ambali v
Bata Shoe Co Ltd
1999 (1) ZLR 417 (S), wherein McNALLY JA at
pp 418H-419D stated as follows:






“I think it is important that this Court should make it clear,
once and for all, that an 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 been 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 the alternative
work he finds
is less well-paid his compensation will be increased.





There are also those,
and Ambali is one of them, who seem to believe that they must on no
account look for alternative employment;
that so long as their case
is pending they must preserve their unemployed status; that if they
look for and find a job in the meanwhile
they will destroy their
claim.





It cannot be
emphasised too strongly that this is wrong. There may be some
confusion arising out of cases which deal with wrongful
suspension
rather than wrongful dismissal.
Zimbabwe Sun Hotels (Pvt)
Ltd v Lawn
1988 (1) ZLR 143 (S) is an example. But if an
employee is wrongfully dismissed his duty to mitigate his loss arises
immediately
. If he is offered a good job the day after he is
dismissed he must take it, or forfeit any claim for damages. If he
is offered
a good job only after he has been unemployed for six
months, he must take it. If in the meantime, he has instituted
proceedings
for reinstatement, he may continue them, but his claim
for damages will usually then be limited to his loss over the six
month period.”
(the emphasis is mine)






The respondent in the
present case accepted the repudiation by the employer of his contract
of employment when he took up employment
with Bella Blue Track (Pvt)
Ltd. His damages for wrongful dismissal can only be calculated from
that date to the date of wrongful
suspension.





Secondly, the learned
President of the Labour Court appeared to be under the impression
that s 2A of the Labour Relations Act
[Cap. 28:01]
has amended the common law position as stated in the Zimbabwe Sun
Hotels (Pvt) Ltd
case supra. Section 2A of the Act
provides as follows:






“2A Purpose of Act





(1) The purpose of
this Act is to advance social justice and democracy in the workplace
by –






(a) giving effect to the fundamental rights of employees provided for
under Part II;





(b) giving effect to
the international obligations of the Republic of Zimbabwe as a member
state of the International Labour Organisation
and as a member of or
party to any other international organisation or agreement governing
conditions of employment;





(c) providing a legal
framework within which employees and employers can bargain
collectively for the improvement of conditions of
employment;





(d) the promotion of
fair labour standards;





(e) the promotion of
the participation by employees in decisions affecting their interests
in the workplace; and





(f) securing the just,
effective and expeditious resolution of disputes and unfair labour
practices.







(2) This Act shall be construed in such manner as best ensures the
attainment of its purpose referred to in subsection (1).







(3) In the event of inconsistency between this Act and any other
enactment then, unless the enactment expressly excludes or modifies
the provision of this Act sought to be applied –






(a) this Act shall prevail over the enactment concerned to the extent
of the inconsistency; and





(b) the enactment
concerned shall be construed with such modifications, qualifications,
adaptations and exceptions as may be necessary
to bring it into
conformity with this Act.”










Section 2A essentially sets out the objective of the Act and
specifically provides that in the event of a conflict between
the
Labour Relations Act and any other enactment the Labour Relations Act
shall prevail. The section is not a wholesale amendment
of the
common law. The common law can only be altered by an explicit
provision of the Labour Relations Act.





The appeal is allowed
and the order of the Labour Court is set aside and substituted with
the following –






“The appellant is ordered to pay the respondent his salary and
benefits from 1 October 2000 to 31 May 2001 when he was
gainfully employed.”






The costs follow the
result and the respondent is ordered to pay the appellant’s costs.











SANDURA JA: I
agree.











CHEDA JA: I
agree.













Scanlen & Holderness, appellant's legal practitioners


Sakututwa &
Partners
, respondent's legal practitioners