Leopard Rock Hotel company (PVT) LTD v Van Beek 2000 (1) ZLR 251 (2)

Mr L T Biti appearing for the respondent. employment and labour law.

 

The respondent, who was an employee of the appellant hotel, was suspended from duty for failing to obey an order to return for hotel use over weekends a motor vehicle which she had been using. the hotel then alleged that as he had compounded the earlier offence by publishing in the press a false story about the hotel. It then applied to a labour relations officer to dismiss her. The application was successful. Several months after her dismissal the respondent found another job. The Labour Relations tribunal later ruled that her dismissal had been unlawful.

Council for the respondent argued that the effect of the ruling by the labour Relations Tribunal was tahyat she reverted to being under suspension. Because the of is she was obliged to hold herself available to work for the employer. Thus it was argued, she was entitled to back pay from the time of her suspend until the time she terminated her employment by getting another job.

 

• held, that the Labour Relations Tribunal was correct in finding that the dismissal of the respondent was unlawful but the reason it had given for its finding was not the correct one. The tribunal had found that s she had already been punished for her offence of refusing to hand over the motor vehicle she could not be punished again for the same offence. This was not correct, there may be occasions where management can legitimately increase a punishment imposed. Secondly, the respondent was not being punished twice for the same offence. She was being punished for compounding the first offence. However the subsequent misconduct had not been proved and this left only the original offence and that offence had been dealt with by a written warning. Thus the dismissal was unlawful but for a different reason.
• held further that the employee did not revert to being under suspension after the ruling of the labour Relations Tribunal. However under s 96 of the Labour relations Act [chapter 2801] wide powers are given to afford equitable relief where there has been unlawful dismissal as the respondent had been unlawfully dismissed she was entitled to either reinstatement or to damages if she claimed reinstatement, the only additional this she could claim was her back pay. Reinstatement does not necessarily imply retrospectitivity. That is why there is a separate provision for back pay and various other payments. In the alternative, she could claim damages. Damaged are wider than back pay. they will normally include back pay, but may include other elements, such as compensation for loss of promotion prospect, interest and other elements as appropriate. Damaged remain an option even where reinstatement is not possible, such as where the employee as found another job. However, it may be that reinstatement may still be possible where the employee has taken another job. The employer may be willing to reinstate the ex-employee may prefer to abandon her new job and return to the old one. the question as to whether reinstatement can be ordered in such circumstances would be left open.
• held, further that the respondent was entitled to back pay from the time of her suspension until the time when with reasonable diligence she could have found another job.Although the Labour Tribunal should have required oral evidence on the important question as to whether she could have found another job earlier, its finding that she had take steps to try to find another job could not be upset.