The Ambali Principle

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Section 89(2)(c)(iii) of the Labour Act (Chapter 28:01) provides that where an employee has been unlawfully dismissed, he must be reinstated in his job.

Where, however, reinstatement is no longer an option, the law provides that the employee concerned be adequately compensated through payment of backpay and damages as an alternative to his reinstatement or employment.

It is the issue of damages which this article seeks to explore. In particular, the article will focus on the case of Charles Ambali v Bata Shoe Company Ltd (case number SC 56/99).

This case was presided over by Justice Nicholas McNally one of the finest legal minds to have graced the Zimbabwean legal landscape.

The Ambali case had been first heard by the Supreme Court in 1998 (case number 100/98) and it was decided that Ambali had been wrongfully dismissed.

The Supreme Court then remitted the matter to the Labour Relations Tribunal (as the Labour Court was known then) to quantify the damages payable to Ambali as an alternative to reinstatement.

There was a disagreement on the quantification, leading Ambali to take the matter back to the Supreme Court on appeal. The facts of the Ambali case are not of great interest here, but the principle enunciated by the court in discharging of this matter.

Said the learned judge of appeal:
I think it is important that this court should make it clear, once and for all, that an employee who considers, whether rightly or wrongly, that he has been unjustly dismissed, is not entitled to sit around and do nothing.

He must look for alternative employment. If he does not, his damages will be reduced. He will be compensated only for the period between his wrongful dismissal and the date when he could reasonably have expected to find alternative employment . . .

There are also those, and Ambali is one of them, who seem to believe that they must on no account look for alternative employment; that so long as their case is pending they must preserve their unemployed status; that if they look for and find a job in the meanwhile they will destroy their claim.

It cannot be emphasised too strongly that this is wrong . . . if an employee is dismissed, his duty to mitigate his loss arises immediately. If he is offered a job a day after he is dismissed, he must take it or forfeit any claim for damages.

This landmark judgment by Justice McNally has been followed in all subsequent cases dealing with wrongful dismissal and damages. For example, in BHP v Takawira (SC 81/99); Kuda Madyara v Globe and Phoenix Industries (Pvt) Ltd t/a Ran Mine (SC 63/02); Zimbabwe United Passenger Company v Richard Christopher Daison SC 87/02; Fokoseni v Lobels Bakery (SC 20/04) and many others.

This has been the approach in other jurisdictions as well. In the South Africa case of Ferodo (Pty) Ltd v De Ruiter (1993), the Labour Appeal Court of South Africa looked at a number of factors to be taken into account in assessing the quantum of compensation or damages where an employee has been unlawfully dismissed.

One of the factors was that a dismissed employee must mitigate his damages by taking all reasonable steps to acquire alternative employment.

There are a number of questions that arise out of this principle. What is a reasonable alternative? What if the employee attempts unsuccessfully to get another job will he be penalised?

Who should prove mitigation the employer or the employee? What if someone decides to set up his own business, rather than seeking an alternative job will he be penalised? If an employee lands another job, do they forfeit the right to reinstatement?

Luckily, over the years, courts have provided answers to some of these questions.

To begin with, in PTC v Swabata (SC 42/03) and other cases, it was held that a dismissed employee is not obliged to take any and every alternative job that comes his way, unless it is a reasonable alternative or a good job.

In my view, a reasonable alternative would be a job that closely matches ones previous job in terms of pay, status and other general conditions of service.

An employee must look for a job, not necessarily secure one. In Fokoseni v Lobels Bakery (SC20/04), Justice Gwaunza held that the court must take a holistic look over the whole period before agreeing that the employee failed to mitigate.

To make a determination on the reasonable period it would take a dismissed employee to obtain reasonable employment, factors such as the harshness or otherwise of the economic environment; the nature, quality and duration of the job; the employees age, skills, qualifications and experience must be taken into account.

The employee will not be penalised if circumstances are such that chances for him to secure alternative employment were very slim.

The onus lies on the employer to prove that the worker did not make efforts to secure alternative employment. The workers duty here is only to defend himself. Naturally, the worker will argue that he looked for alternative employment without success. If the employer cannot refute such claims, the employees story will be believed.

On the issue of an employee setting up himself in business instead of taking up alternative employment, legal author Izekiel Machingambi in his book A Guide to labour Law in Zimbabwe (page 115) considers this acceptable. The employee will not be penalised as he in effect took steps to mitigate his job loss.

Lastly, lets deal with the circumstances of a dismissed employee versus a suspended employee. As pointed out by Justice McNally in the Ambali case cited above, a wrongfully suspended employee must not look for a job.

If he does so, he has automatically terminated his contract of employment with the employer who suspended him. He can only claim damages for the period between his wrongful suspension and the date on which he commences employment with the new employer.

On the contrary, taking up of alternative employment by a dismissed employee does not repudiate his contract of employment with the employer who dismissed him.

Isaac Mazanhi is a labour analyst. He writes in his personal capacity. He can be contacted on e-mail: imazanhi@hotmail.com

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