MPOFU v COMMISSIONER OF POLICE & ANOR 2010 (2) ZLR 389 (H)

Flynote

Employment - wrongful dismissal - damages in lieu of reinstatement - assessment - period of unemployment covering time when abandoned Zimbabwean currency was still in use - calculation of equivalent figure in US dollars - deduction for failure to mitigate loss - calculation of

Headnote

The applicant had been dismissed from the police force following a conviction for assault. The dismissal took place before the determination of his appeal against the conviction. The appeal was successful and, after lengthy litigation, the Supreme Court held that the dismissal, being based on a conviction which had been quashed, was irregular. The court ordered that the matter be remitted to the High Court to determine whether the applicant should be reinstated or paid damages in lieu of reinstatement. The claim for reinstatement was abandoned and the issue was the quantum of damages. One of the considerations was how to deal with the fact that most of the time when the applicant was unlawfully out of employment was during the Zimbabwe dollar era. The Zimbabwean currency having been effectively abandoned, an award in that currency would be worthless.

Held, that the principles governing the payment of such damages are well settled. An employee is entitled to be awarded the amount of wages or salary he would have earned had it not been 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. It is also settled law that the employee must mitigate his loss. He cannot just sit and do nothing. If he fails to take up other employment when it would have been reasonable to do so, a deduction will be made in respect of the remuneration he would have earned from the substituted employment.

Further, the measure of damages accorded such employee is the actual loss suffered by the employee represented by the sum due to him for the unexpired period of the contract less any sum he earned or could have earned during such latter period in similar circumstances. Held, further, that the figures proposed by the applicant, being based on his actual salary figures in local currency, converted at the various official rates prevailing at the time, produced an unrealistic total of around 4 times what the current salaries are in US dollars. The sum payable should be reduced accordingly. deduction should also be made in respect of the employment which he could reasonably have been expected to have found.

Editor's note: the Supreme Court judgment referred to is Mpofu v Commissioner of Police & Anor 2008 (2) ZLR 117 (S).