Heywood Investments (Private) Limited t/a GDC Hauliers v Pharaoh Zakeyo

The respondent was employed by the appellant as a security sergeant and was dismissed on 23 March 2006 on allegations of theft of diesel. He successfully appealed to the Labour Court which ordered his reinstatement with full benefits, or alternatively, damages in lieu of reinstatement if reinstatement was not possible. The Supreme Court upheld the Labour Court's decision on 18 January 2010. The appellant chose not to comply with the reinstatement order. On 19 March 2010, the respondent filed a court application with the Labour Court for quantification of damages, claiming leave pay, transport and housing allowances, salaries, bonuses, shift allowances, gratuity, and damages equivalent to five years' salary. On 1 April 2011, the Labour Court awarded the respondent damages calculated at USD245 per month across various heads. The appellant appealed to the Supreme Court on grounds that the application was procedurally defective and that the court misdirected itself in its quantification of damages.

• Whether the respondent's failure to file his application in Form LC 1 as required by section 14 of the Labour Court Rules rendered the application fatally defective
• Whether the Labour Court was obliged to determine the point in limine raised by the appellant before proceeding to the merits
• Whether the Labour Court misdirected itself in placing the onus on the appellant to disprove the respondent's claims for damages
• Whether the Labour Court erred in quantifying damages without sufficient evidence
• Whether back-pay can be awarded for a period after the date of the reinstatement order
• Whether damages should be calculated on a net basis taking tax into account

The appeal was allowed with costs. The judgment of the Labour Court was set aside. The matter was remitted to the Labour Court to determine the point in limine regarding procedural non-compliance, and if that point failed, to properly quantify damages due to the respondent.

A court before which an interlocutory application has been made must determine that application before proceeding to the merits of the matter. In quantifying damages for unfair dismissal, the onus lies on the claimant to adduce sufficient evidence to enable the court to assess damages; a court cannot award damages based on conjecture or arbitrary averages in the absence of proper evidence. Back-pay in reinstatement cases cannot be awarded for any period after the date on which the order of reinstatement was issued. Damages must be calculated on a net basis taking into account tax obligations. Failure to comply with procedural requirements, such as filing an application in the prescribed form under the Labour Court Rules, raises a justiciable issue that must be determined regardless of alleged non-compliance by the other party with substantive orders.

The court noted that the Labour Court has powers under section 90A(4) of the Labour Act to ascertain facts and call parties to give evidence, and to examine witnesses. However, these powers do not absolve claimants from their duty to adduce available evidence, nor do they permit courts to award damages where no evidential basis exists. The court also observed that evidence regarding salary scales under collective bargaining agreements was readily available to the respondent and could easily have been obtained, making the damages capable of assessment with mathematical precision rather than requiring approximation.

This case is significant in Zimbabwean labour law for establishing important principles regarding: (1) the mandatory nature of procedural rules in Labour Court applications and the obligation of courts to determine interlocutory applications before proceeding to the merits; (2) the onus of proof in damages claims lying with the claimant, not the respondent; (3) the requirement for proper evidential basis for quantification of damages and the prohibition on courts engaging in conjecture or 'plucking figures out of the air'; (4) the temporal limitation on back-pay awards to the date of the reinstatement order; and (5) the need to account for tax when calculating damages. The case reinforces procedural discipline in labour litigation and evidential standards for damages quantification.