United Bottlers v Charles Kaduya

The appellant suspended the respondent from work without pay and benefits on 15 March 1999. A labour relations officer ordered reinstatement without loss of pay and benefits, alternatively payment of wages up to 30 January 2000 plus three months' pay as damages. On review, a senior labour relations officer upheld the decision but extended the wage payment period to 30 June 2000. The appellant complied with this determination. While suspended, the respondent secured alternative employment with Bella Blue Track (Pvt) Ltd from 1 June 2001 to 3 February 2004, approximately two-and-a-half years. When quantification came before the Labour Court, the appellant offered to pay wages from 1 October 2000 to 31 May 2001 (the period when the respondent was not gainfully employed). However, the Labour Court determined the respondent was entitled to pay and benefits from the date of dismissal to the date of judgment, reasoning that the respondent had a duty to mitigate damages and that his alternative employment had no bearing on the contract of employment.

• Whether a wrongfully suspended employee who takes up alternative employment terminates his contract of employment with the original employer
• Whether the duty to mitigate damages applicable to wrongfully dismissed employees applies equally to wrongfully suspended employees
• The correct quantification of damages for wrongful suspension where the employee has secured alternative employment
• Whether section 2A of the Labour Relations Act altered the common law position regarding suspended employees' obligations

The appeal was allowed. The order of the Labour Court was set aside and substituted with the following: "The appellant is ordered to pay the respondent his salary and benefits from 1 October 2000 to 31 May 2001 when he was gainfully employed." The respondent was ordered to pay the appellant's costs.

An employee who is under suspension and takes up employment elsewhere terminates his employment with the original employer. An unlawful suspension is a repudiation of the contract of employment by the employer, and the employee can elect either to accept the repudiation or enforce the contract. When an employee accepts alternative employment, he thereby accepts the employer's repudiation, and his only remaining remedy is to sue for damages for breach of contract. A wrongfully suspended employee has a duty by operation of law to remain available for employment by his employer, which differs from the duty of a wrongfully dismissed employee to mitigate damages by finding alternative employment. Damages for wrongful suspension can only be calculated from the date of wrongful suspension to the date when the employee accepted alternative employment. Section 2A of the Labour Relations Act does not constitute a wholesale amendment of the common law; the common law can only be altered by explicit provisions in the Labour Relations Act.

The Court emphasized the importance of clarity in labour law, noting that there may be confusion arising from cases dealing with wrongful suspension versus wrongful dismissal. The Court referenced McNally JA's statement in Ambali v Bata Shoe Co Ltd regarding the common misconception that employees must preserve their unemployed status while cases are pending, clarifying that this is wrong for dismissal cases but the principle differs for suspension cases. The Court also commented on the interpretation of section 2A of the Labour Relations Act, noting that while it sets out objectives and provides for the Act's supremacy over other enactments in cases of conflict, it should not be read as automatically displacing well-established common law principles without explicit statutory language to that effect.

This case is significant in Zimbabwean labour law jurisprudence as it clarifies the critical distinction between wrongful suspension and wrongful dismissal, particularly regarding the employee's obligations and the calculation of damages. It establishes that a suspended employee who accepts alternative employment is deemed to have accepted the employer's repudiation of the contract, thereby limiting damages to the period before such alternative employment commenced. The judgment also clarifies that section 2A of the Labour Relations Act does not automatically override established common law principles unless there is an explicit statutory provision to that effect. This provides important guidance for labour courts in applying the appropriate legal principles to suspension cases and reinforces the obligation of suspended employees to remain available for work with their original employer.