BHP MINERALS ZIMBABWE (PVT) LTD v TAKAWIRA 1999 (2) ZLR 77 (S)

Flynote

Employment — contract — termination — remedies for wrongful termination — employer must pay back wages and either reinstate employee or pay him damages — employee not entitled to reject genuine offer of reinstatement and then claim damages instead

Headnote

The respondent had been wrongfully dismissed by the appellant, his employer. The appellant agreed to pay the respondent his wages for the period from the time of his wrongful dismissal to the date of his reinstatement and to reinstate him. The respondent, however, refused to accept reinstatement and proceeded to claim, as damages, the amount that he would have earned over the remaining years of his working life.

Held, that s 96 of the Labour Relations Act [Chapter 28:01] provides that any determination as to reinstatement must specify an amount of damages to be awarded to the employee as an alternative to his reinstatement. This provision gives the employer the option to choose to pay damages, rather than offering to reinstate the employee. It cannot be interpreted to mean that the employee can choose, without justifying his choice in any way, to refuse reinstatement and demand instead the payment of money. If the employee refuses a genuine offer ofreinstatement, he abandons his claim for damages in respect of the period after the reinstatement was supposed to commence. However, if the employee can prove that the offer to reinstate him is false, he may be entitled to damages in lieu of reinstatement.