Zimbabwe United Passenger Company v Richard Christopher Daison

Richard Christopher Daison was employed by Zimbabwe United Passenger Company (Zupco) as a motor mechanic. He was charged with misconduct, found guilty and dismissed on 23 April 1997 in terms of Zupco's Code of Conduct. Daison appealed to the Labour Relations Tribunal which on 9 April 2001 ordered that he be reinstated with no loss of salary or benefits, or alternatively that Zupco pay damages in lieu of reinstatement. When the parties failed to agree on quantum, the Tribunal on 1 August 2001 ordered Zupco to pay Daison his salary and benefits for 48 months. Zupco appealed against this quantum determination.

• Whether the appeal raised a question of law sufficient to ground an appeal from the Labour Relations Tribunal in terms of section 92(2) of the Labour Relations Act
• Whether a ruling by the Tribunal on quantum of damages could be categorized as wholly unreasonable so as to constitute a question of law
• Whether an order for reinstatement 'with no loss of salary or benefits' has retrospective effect
• What damages are payable in lieu of reinstatement where the original order contemplated retrospective reinstatement
• Whether the employee was entitled to back-pay and benefits and for what period
• What benefits the employee was entitled to under his contract of employment
• The extent of the employee's duty to mitigate damages and the burden of proof regarding mitigation

1. The appeal is allowed with no order as to costs. 2. The order issued by the Tribunal is set aside. 3. The matter is remitted to the Tribunal to enable it to calculate the sum payable to Daison in accordance with the principles set out in this judgment after the relevant evidence is led by the parties.

The binding legal principles established are: (1) A ruling by a tribunal on quantum of damages is a ruling on fact and not appealable unless it can be categorized as wholly unreasonable, which may occur where the tribunal misdirects itself on law or fails to provide any rational basis for its assessment. (2) An order for reinstatement 'with no loss of salary or benefits' has retrospective effect. (3) Where an employee is ordered to be reinstated retrospectively or paid damages in lieu of such reinstatement, the damages must include back-pay and benefits for the period from dismissal to the date of the reinstatement order. (4) The distinction between an employee who is actually reinstated and one paid damages in lieu is that one gets his job back while the other is compensated for premature termination, but both are entitled to back-pay and benefits where retrospectivity is intended. (5) The burden of proof rests on the employer to show that a dismissed employee has earned or should have earned income from another source in mitigation of damages.

The Court made observations about the proper form of tribunal orders, noting that the Tribunal's order was 'inappropriately worded, and is not in the usual form.' The Court also commented on the employee's duty to mitigate, observing that 'an employee who considers, whether rightly or wrongly, that he has been unlawfully dismissed, is not entitled to sit around and do nothing' but must look for and take temporary employment when available. The Court noted that Daison made no claim for damages in respect of the premature termination of his employment contract (as distinct from back-pay), though this was not determinative of the appeal.

This case is significant in Zimbabwean (and potentially South African) labour law jurisprudence for establishing important principles regarding: (1) when appeals on quantum of damages involve questions of law (the 'wholly unreasonable' test); (2) the interpretation of reinstatement orders 'with no loss of salary or benefits' as having retrospective effect; (3) the principle that damages in lieu of retrospective reinstatement must include back-pay and benefits for the same period; (4) the proper approach to assessing damages in unfair dismissal cases; and (5) the burden of proof regarding mitigation of damages resting on the employer. The case provides important guidance on how tribunals should approach quantification of damages and the need to provide reasoned explanations for their calculations.