Court name
Supreme Court of Zimbabwe
Case number
SC 88 of 2005
Civil Appeal 165 of 2004

Olivine Industries (Pvt) Ltd. v Nharara (65/04) (SC 88 of 2005, Civil Appeal 165 of 2004) [2006] ZWSC 88 (06 March 2006);

Law report citations
Media neutral citation
[2006] ZWSC 88













REPORTABLE
(75)


Judgment
No. SC. 88/05


Civil
Appeal No. 165/04








OLIVINE
INDUSTRIES (PRIVATE) LIMITED





v
CAUTION NHARARA








SUPREME
COURT OF ZIMBABWE


CHEDA
JA, MALABA JA & GWAUNZA JA


HARARE,
SEPTEMBER 12, 2005 & MARCH 7, 2006








Ms
N Moyo
, for the appellant





The
respondent in person





CHEDA
JA: In a judgment, No. LRT/H/238/2002, dated 26 September
2002 the Labour Relations Tribunal (now the Labour
Court) made an
order for the reinstatement of the respondent to his employment by
the appellant. Part of the order read:






“In the event that
reinstatement is no longer an option the respondent be and is hereby
ordered to pay the appellant damages in lieu
of reinstatement, (the)
quantum of which the parties may agree, on failure of which
the parties may approach the Tribunal for quantification. (The)
appellant (is)
granted costs of suit and interest at the prescribed
rate.”






The
parties met as directed, but failed to agree on the quantum
and returned to the Labour Court once more. Mr Sithole, a
Trade Unionist, represented the then appellant (now the respondent).

Part of his address to the Tribunal reads as follows:






“… the
issue of Nharara was partly implemented as per the court order. The
judgment, number LRT/H/238/2002, in that judgment, Your
Honour, it
was ordered that the respondent, being Olivine Industries, was
ordered to reinstate the appellant without loss of salary
and
benefits. And what Olivine did, Your Honour, was simple (sic)
to back-pay and they said the issue of reinstatement was a
non-starter. We tried our level best, Your Honour, to reason with
the
respondent but to no avail. The respondent has his (sic)
own interpretation of that court order. The respondent was of the
opinion that because the relationship was sour, they (sic)
could not entertain the issue of reinstating Mr Nharara as per
the court order. At the same time they where (sic) not
prepared to pay damages in lieu of reinstatement. And there was a
bit of confusion until we had to write back in terms of
the spirit of
the court order we should refer it back to the Honourable Court, and
that is exactly what we did on 11th of July 2003. And in
our referral to this Honourable Court, we wrote that we could not
agree. Olivine Industries decided to pay
only back-pay. Other
benefits and damages they refused, hence our application for a
set-down for this matter.”






The
above shows that the parties returned to the Tribunal because of the
disagreement on the quantum of damages the appellant should
have paid the respondent. The appellant had obviously paid the
respondent his back-pay as per part
of the order made by the
Tribunal.






After hearing both sides, the
Tribunal proceeded to make the following order:







“1. The applicant is awarded
back-pay from July 4, 1997 to October 11, 2001, together
with all the benefits he would have
been entitled to had he remained
in the respondent’s employ during that period.






2. That
the respondent pays interest at the prescribed rate on the back-pay
calculated from October 11, 2001 to the final date
of payment.





3. That
the respondent pays the applicant eighteen months’ salary at
today’s rates as damages for the applicant’s premature
loss of
his job, together with interest at the prescribed rate calculated
from the date of this judgment to the date of payment in
full.





4. That
from the back-pay, an amount of $1 052 010.00 (one million
fifty-one thousand and ten dollars) be subtracted since
the applicant
has already received this amount.





5. That
each party bears its own costs.”






The
main grounds of appeal to this Court are that –






(a) the court a quo
erred at law in awarding two remedies of back-pay and damages, thus
over-compensating him;







(b) the court a quo
made a vague award of damages at “today’s rates”; and







(c) the court a quo
made an award that was neither asked for nor supported by either of
the parties.






The appellant prays that this
Court either reassess an appropriate award of damages from the
evidence on record or remit the matter
to the court a quo
with directions to make a proper assessment of an award of damages.





There
are several cases that provide guidance in cases similar to this one.
Where an employee is found to have been wrongfully
dismissed
reinstatement is normally ordered. Taking into account that in some
cases reinstatement is found to be no longer desirable
if relations
between the parties have soured, provision was made for damages to be
paid to the employee instead of reinstatement.
See Gauntlett
Security Services (Pvt) Ltd v Leonard
1997 (1) ZLR 583 (S);
Chegutu Municipality v Manyora 1996 (1) ZLR 262; BHP
Minerals Zimbabwe (Pvt) Ltd v Cranny Takawira
SC 81/99 (not
reported); and Leopard Rock Hotel Co (Pvt) Ltd v Hilary van Beek
SC 6/2000 (not reported).





In
Leopard Rock Hotel Co (Pvt) Ltd v van Beek supra this
Court stated as follows:






“’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.
But here the back-pay will be
limited to a period from the date of wrongful dismissal to a date by
which she could, with reasonable
diligence, have obtained alternative
employment. See Ambali supra and Myers supra





In
this case, it had been argued that back-pay should be paid only up to
the time the respondent could have been expected to have
found, with
reasonable diligence, alternative employment. What remained in
dispute was when the payment of salary and benefits
should cease.





It
was, therefore, correct to order that the respondent be awarded
back-pay from 4 July 1997, together with interest. The
back-pay and benefits would represent what the respondent should have
received had he not been wrongfully dismissed.





In
additional damages, the award should take into account the period he
should have taken to obtain alternative employment. No
evidence was
led on that issue.






It was also submitted that the
respondent earned money repairing cellphones and selling tomatoes.
This, too, should have been taken
into account. No details were
given.





While
this Court would have liked to see this matter finalised by making an
order, such order cannot be made without evidence on
the amounts
earned by the respondent during that period.





The
respondent can only be compensated by an amount that should be
calculated at the rates applicable at the time and not at today’s
rates or some future unknown rates. An order for payment “at
today’s rates” is vague and inappropriate in the circumstances.

Today’s rates will obviously be very different from the rates that
prevailed at the time.






In
the previous judgment, No. LRT/H/238/2002, wherein the
respondent had succeeded, he was granted costs. No reason was given
for changing the award for costs in judgment No. LC/H/55/2004.
No appeal was lodged against the order of costs either. Ms Moyo,
for the appellant, conceded that there was no reason for the Labour
Court to change the order for costs.





Accordingly,
the appeal succeeds to the extent that –






1. Paragraph 3 of judgment
No. LC/H/55/2004 is set aside.







2. The order for costs is set
aside.







3. The matter is referred back to
the court a quo to hear evidence on the period the
respondent would have been reasonably expected, with due diligence,
to obtain alternative employment,
and the amount that he earned from
repairing cellphones and selling tomatoes;







4. The court a quo is
ordered to award damages at the rates prevailing at that time and not
at today’s rates; and







5. There shall be no order as to
costs.”












MALABA
JA: I agree.









GWAUNZA  JA:
I agree.











Coghlan,
Welsh & Guest
, appellant's legal practitioners