Telecel Zimbabwe Private Limited v Sibangani Mabore

The respondent was employed by the appellant as Procurement Manager on 1 July 2010 on a three-month probationary period ending September 2010. On 25 November 2010, the probationary period was extended. In January 2011, the respondent was advised his permanent employment was not confirmed and he was dismissed on 30 January 2011. An arbitrator found the dismissal was unfair and ordered damages of $40,000. A consent order was issued requiring reinstatement failing which damages would be quantified by the Labour Court. The appellant failed to reinstate. The Labour Court quantified damages at 36 months' salary plus benefits totaling US$156,458.67. The respondent's own emails dated 7 July 2011, 12 July 2011, and 31 October 2011 indicated he was already employed in Nigeria as a Group Supply Chain Manager/Procurement Manager when applying for other positions.

• Whether the Labour Court erred in awarding damages equivalent to 36 months' salary for unlawful dismissal
• What is the correct basis for computing damages for unlawful dismissal where alternative employment has been obtained
• Whether an employee who has obtained alternative employment can claim damages for the period after obtaining such employment
• The duty of a dismissed employee to mitigate damages by seeking alternative employment

The appeal was allowed with costs. The Labour Court judgment was set aside and substituted with an order that the respondent pay: (i) Back pay of US$12,883.00; (ii) Cash in lieu of leave of US$2,572.36; (iii) Damages in lieu of reinstatement of US$9,600.00; (b) US$3,000.00 to be deducted from the total; (c) Each party to bear its own costs.

An employee who has been unlawfully dismissed is under a duty to mitigate damages by seeking alternative employment and will only be entitled to damages for the period between wrongful dismissal and the date when alternative employment was obtained or could reasonably have been expected to be obtained. Where an employee produces documentary evidence (such as emails) containing factual assertions about his employment status, and later seeks to contradict those assertions without a proper basis, the court will rely on the documentary evidence. Damages for unfair dismissal must be based on the evidence before the court and cannot be plucked from nowhere; courts must use the information at hand to make assessments.

The Court observed that this was not a case of premature termination of a fixed-term contract that had yet to run its full term, but rather arose from the employer's failure to properly terminate a probationary employment relationship. The Court noted that where a party has confessed himself to be a liar by contradicting his own written statements, no basis exists to prefer oral submissions over contemporaneous documentary evidence.

This case is significant in Zimbabwean labour law as it reinforces and applies the principles for calculating damages for unlawful dismissal established in Ambali v Bata Shoe Company Ltd. It emphasizes the duty of dismissed employees to mitigate their losses by seeking alternative employment and clarifies that damages are limited to the period between dismissal and obtaining alternative employment. The case also demonstrates that courts will hold parties to representations they make in documentary evidence, even when those parties later seek to resile from such statements. It provides important guidance on the assessment of damages in unfair dismissal cases, particularly regarding the need for awards to be based on evidence rather than speculation.