HEYWOOD INVESTMENTS (PVT) LTD v ZAKEYO 2013 (2) ZLR 16 (S)

Flynote

Employment — Labour Court — application to — quantification of damages in lieu of reinstatement — proof of — affidavits by parties not required

Employment — wrongful dismissal — damages in lieu of reinstatement — assessment — onus — onus on person claiming damages to prove amounts claimed — quantification of by Labour Court — what court must do — court $\delta$ not entitled to guess amount — need to calculate figure precisely — back pay — period for which back pay may be ordered

Practice and procedure — application — interlocutory application — point in limine being raised — duty of court to consider such application before determining merits of matter $\epsilon$

Headnote

The respondent had been dismissed from his employment by the appellant on the grounds of theft. He successfully appealed to the Labour Court, which ordered that the respondent be reinstated to his former position with full benefits, and that should reinstatement be no longer possible, $\epsilon$ he be paid damages in lieu thereof. In the event of the parties failing to agree on the damages they were free to approach the Labour Court for quantification of the damages. The Labour Court's decision was upheld on appeal. The appellant chose not to reinstate the respondent. The respondent filed a court application with the Labour Court for an order for the quantification of damages on the grounds that the appellant had $\delta$ failed to reinstate him into employment. He itemised the claim under various heads. The Labour Court in due course granted an award, against which the appellant appealed. In its award, damages for loss of salary were not based on the salary which the appellant said would have been paid to someone in the respondent's position at the time of dismissal, nor on what the respondent claimed; the court took the view that in the interests of fairness the average between what was claimed and what was suggested on behalf of the respondent would meet the justice of the case.

The first ground of appeal was that the respondent's application was fatally defective for want of form, in that it failed to comply with the requirements of the Labour Court Rules (SI 59 of 2006), r 14 of which requires that an application to the Labour Court in terms of s 89(2)(b), (c) or (d) of the Labour Act be in Form LC 1. The Labour Court had held, on this point, that the appellant had no basis for objecting to the manner in which the application was filed and could not raise a defect on the papers presented by the respondent as a defence to the application when the appellant itself had failed or refused to comply with the order directing it to reinstate the respondent.

The second ground was that the Labour Court misdirected itself in finding that the appellant had not furnished any evidence to controvert the claim by the respondent. The appellant also contended that the court misdirected itself by finding that the appellant bore the onus to disprove the respondent's claims and in finding that the appellant should have filed affidavits to counter the respondent's claim.

Held, that the Labour Court failed to appreciate the legal issue raised by the point in limine. It is incumbent upon a court before which an application is made to determine it. A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application. The question of whether the failure to comply with the provisions of r 14 was such as to render the application fatally defective had to be considered in isolation of the alleged failure by the appellant to comply with the order of reinstatement. The refusal by the court to determine the point in limine was a misdirection on a point of law.

Held, further, that r 14 does not provide for the filing of affidavits by either party to the dispute. The finding by the Labour Court that the appellant omitted to file affidavits to counter the assertions of the respondent was a misdirection.

Held, further, that it was incumbent upon the respondent to adduce evidence in support of his claim for damages. The application had attached to it an affidavit in which the respondent made assertions as to the basis upon which he sought to claim damages. There was, however, no evidence placed before the court on the specific heads under which the respondent sought an order of damages. The Labour Court placed an onus upon the appellant to counter what it clearly found was not evidence. The court is obliged in terms of s 90A(4) of the Act to ascertain facts in any proceedings before it and, where necessary, to call parties to giveevidence. It is further empowered to examine any witness appearing before it. What the court is not empowered to do is to award damages in the absence of any evidence in support of such award. The court's reasoning that the appellant should have filed documents or affidavits to contradict the respondent's claim was grossly unreasonable.

Held, further, that the reasoning of the court that the suggested average was in the interest of fairness and justice was grossly unreasonable and a misdirection on the law. Where damages can be assessed with precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damages and to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork. The evidence of what the rate of earnings applied to an employee in the respondent's grade was readily available in collective bargaining agreements which the respondent could easily have obtained. The damages were consequently capable of assessment with precision. The court a quo, instead, embarked upon conjecture and plucked a figure out of the air.

Held, further, that back-pay cannot legally be awarded in respect of a period after the date of the order of reinstatement is granted.