Alpha Packaging (Pvt) Ltd v Davison Seenzayi & 2 Ors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/281/2023
HARARE, 21 OCTOBER, 2021
CASE NO. LC/H/121/20
AND 22 SEPTEMBER, 2023
---------


IN THE LABOUR COURT OF ZIMBABWE HARARE, 21 OCTOBER, 2021

AND 22 SEPTEMBER, 2023

In the matter between:

JUDGMENT NO. LC/H/281/2023 CASE NO. LC/H/121/20

ALPHA PACKAGING (PVT) LTD	APPELLANT AND

DAVISON SEENZAYI	1ST RESPONDENT AND

DICKSON DICKSON	2ND RESPONDENT AND

NELSON MUSWE	3RD RESPONDENT

Before The Honourable Chivizhe J

For the Appellant	: Mrs R.T.L Matsika (Legal Practitioner)

For the Respondents	: Mr T. Mutindi (Legal Practitioner)

CHIVIZHE J:

The delay in the hand down of this judgment is sincerely regretted. This is an appeal against a determination by the Chairperson of the Appeals Committee which determination was handed down on 15 October 2020. The material background facts to the matter are as follows;

The three Respondents in this matter were all employed by the Applicant. They were all separately charged with an act of misconduct namely “gross negligence” under and in terms of the relevant Code of Conduct for the Printing and Packaging Industry.

The charges were leveled against a background where all  the Respondents were alleged to have been working the on 29th August 2019 testing the Applicant’s borehole submersible pumps which had malfunctioned. It was Applicant contention that during the process one of the pumps had been separated from the cables which held it in place whilst

one of the pumps was still attached to the cables. The Respondents had also disconnected some cables and placed these next to the borehole. At the end of the work day the Respondents were alleged to have left the pump which had been detached from the cables as well as the pipes and cables on the ground next to the borehole. They were said to have left the said borehole equipment close to the back perimeter wall of the premises. They had covered the pump with a paper pallet, whilst the pipes and cables were left exposed.

The security guard who was on duty during the night shift managed to abort an attempted theft by some thieves who had managed to scale the perimeter wall in the area where the pump, pipes and cables had been left by the Respondents.

The Appellant, not being amused, leveled a charge of “gross negligence” against the three Respondents separately. Separate disciplinary hearings were then convened for each of the Respondents at which evidence was led. The initial disciplinary proceedings of the 5th of September, 2019, however were set aside by the NEC Appeals Committee on procedural grounds and each of the matters was remitted to the Appellant for a re-hearing which re- hearings were then conducted on the 6th of December 2019.

The Respondents were each found guilty and a penalty of dismissal was imposed on all three. Aggrieved they noted an appeal internally to the appeals committee and when that failed they then approached the NEC Appeals Committee with their appeal. The NEC Appeals Committee after sitting to hear the appeal on the 14th of October 2020 reached a deadlock as to the guilt of the Respondents.

This resulted in the Chairperson exercising his right to cast a vote in order to offset the deadlock.   In his determination handed down on 15th October 2020 he ruled in favor of the Respondents. Dissatisfied the Appellant then noted the present appeal.

The appeal has been noted on the basis of the following grounds;

The Appeal Committee of the National Employment Council for the Printing Packaging and Newspaper Industry erred at law by relying on the oral evidence by the guard, Johannes Nyambuya, during the initial disciplinary hearings, notwithstanding the fact that the hearings were subsequently nullified and fresh disciplinary hearings were undertaken.

Alternatively and in any event, in relying on the evidence of the guard was adduced during the nullified proceedings, the Appeals Committee misdirected itself at law by making findings which were inconsistent with the evidence of the guard and which were not supported by the evidence on record, to wit;

The Appeals Committee found, in the absence of any evidence to that effect, that, “Assuming that the guard was trained, on a balance of probability there must have been a discussion pointing specifically on the items to be guarded”;

The Appeals Committee found, in contradiction to the guard’s evidence that he “stumbled” upon the pumps and other borehole fittings, that he had been informed specifically of the existence of the pumps and fittings;

The Appeals Committee found, in direct contradiction to the evidence on record, that there were inconsistences in the evidence of the guard as adduced in the nullified proceedings and as adduced in the de novo proceedings.

In any event, the Appeals Committee erred in setting aside the findings of fact which were made by the Disciplinary Committee in the absence of a finding that such findings of fact were grossly unreasonable.

The Appeals Committee grossly misdirected itself by shifting the duty of care in relation to the borehole pumps and fittings from the Respondents to the security guard.

A fortiori, the Appeals Committee erred in ordering the reinstatement of the Respondents.

The Respondents in their response to the appeal firstly, raised a point in limine to the effect that the first ground was not properly taken in an appeal. It was their submission the first ground ought to have been more properly taken in review proceedings. This point was however abandoned on the date of hearing before this court. The abandonment was properly taken as there was clearly no merit to the point. In relation to the other grounds taken by the Appellant the Respondents submitted that the NEC Appeals Committee was correct in the findings made, that, having told the security guard to ensure the safety of Appellant’s property they were absolved of any fault/wrong doing. They also submitted that the Chairperson of the NEC Appeals Committee was correct in placing reliance on the statement by the security guard, Johannes Nyambuya which had been made in the first hearing of 6 September, 2019.

In relation to the third ground of appeal the Respondents reiterated that the Appeals Committee made correct findings of fact based on the evidence presented that the Respondents had told the security guard to ensure the safety of Appellant’s equipment. The NEC Appeals Committee was therefore justified in interfering with the factual findings made by the Disciplinary Committee. On the last ground of appeal the Respondents submitted that the NEC Appeals Committee did not err in finding that the security guard ought to have simply discharged his duties to ensure the safety of Appellants equipment. The Respondents, once they had advised the security guard could no longer be held responsible for the

equipment as they had to go to their homes. The parties appeared before the court and elaborated on the positions as taken through their Heads of Arguments as filed of record.

FINDINGS /EVALUATION

WHETHER THE APPEALS COMMITTEE ERRED AT LAW IN RELYING ON EVIDENCE LED AT THE INITIAL HEARING.

The Appellant in the first ground alleges that the Chairperson of the Appeals Committee misdirected himself at law by making a finding based on the oral evidence of the security guard given during the September 2019 hearings that were nullified proceedings.

The Appeals Committee had found as follows;

“…     because the guard’s statements are different from the two hearings the recollection of events in

the first hearing is close to reality because the events were still fresh in this mind. Secondly his narration of events is not influenced because he did not know the mind of his master(the Company) as opposed to the 2nd hearing where the company had taken a position the guard seemed to be treading (SIC) carefully.”

It is my finding on this ground that this ground is merited. It is indeed correct as submitted by the Appellant that the Appeals Committee erred by placing reliance on evidence which had been led in nullified proceedings. The effect of nullification is to quash the record of proceedings including the evidence led by witnesses. The Chairperson of the Appeals Committee clearly erred at law on that point. He took into account irrelevant consideration in order to arrive at the finding. If he was so inclined to consider the evidence of the particular witness taken then he ought to have considered the witness’s written statement which evidence was tendered at the de- novo hearing.

WHETHER THE APPEALS COMMITTEE MISDIRECTED ITSELF BY MAKING FINDINGS WHICH WERE INCONSISTENT WITH EVIDENCE IN THE RECORD

The Appellant also challenged the findings made by the Appeals Committee that as the same witness i.e. security guard was informed by the Respondent to guard the property, he ought to have done his job and there was no basis for imputing gross negligence on the part of the Respondents. The Appellant also submits that the evidence in the record proved that the security guard was consistent that the Respondents did not inform him that they would leave the borehole equipment in the work area, that they did not specifically instruct him to guard the equipment and that he only stumbled upon the equipment whilst he was doing his rounds.

Contrary to Appellant submissions it would appear based on the evidence given by the witness Johannes Nyambuya, the security guard, in his written statement as well as oral

statement at the second hearing conducted on 9 December 2019, the witness clearly gave inconsistent evidence. This issue was also noted by the Appeals Committee. In his written statement recorded on 29th August 2019 the witness wrote as follows;

“After working hours they left pumps and cables lying on the ground. I, Nyambuya Johannes noticed all these by the time I was doing my random checkups like always as usual. And I instructed my night shift detail Ernest Mubako to monitor the situation until tomorrow morning (sic)’’

During the de novo hearing of 6th December, 2019 the same witness testified as follows;

“… around past four. I did my checks in the premises and I saw the guys close to the fence where there are the pumps and I got to them and told them when I saw you from afar I thought thieves have jumped over and got inside, then Dickson said then you should keep monitoring this place, then I replied him saying that is what we always do because this is an entrance for thieves and I moved from the point. Later on when I was doing another round check I saw the pumps left outside.”

It is apparent that in his written statements the witness did not refer to the discussion with any or all of the Respondents. In his oral evidence however he referred to a conversation he had held with Respondents in particular Dickson. His latter evidence however clearly conformed with the evidence of First Respondent who in his written report dated 31 August 2019 as follows;

“As we were about to finish, one of the security guards (Nyambuya) came and we told him that the area was to be guarded for the whole night ….”

Second Respondent in his hearing of 5th September 2020 also testified as follows;

“To be honest we thought telling the guards to watch the area would be safe enough”

The duty of Disciplinary Committee was to assess the evidence led before it and to make factual findings as to what had transpired. Based on the above evidence it would have been reasonable to conclude that Respondents did inform the security guard to guard the area. As correctly noted by the Chairperson of the National Employment Council in the appeal determination the issue that divided the vote amongst the committee members was whether or not the Respondents had taken reasonable steps to protect their employer’s property. In taking his decision to side with the one group he reached the conclusion as follows;

“in the final analysis I agree with the other members of the panel who argued that care was exercised by telling the guard to take extra care of the area with the items in question i.e. pumps, cables etc. The test for gross negligence is not satisfied.”

The conclusion reached by the Chairperson was not an unreasonable one.   The issue as to which one of the Respondents issued the instruction to the guard was not of much material value once it had been established that the Respondent did discuss with the security guard the issue of securing the area where the equipment was left. The issue as to whether there had been a specific instruction issued to the security guard to guard the equipment would fall away once it had been established that a general instruction had been given to guard the area. The court is satisfied that based on the facts and evidence in the record the NEC Appeals Committee was correct when it reached a decision to overturn the decision of the Disciplinary Committee. Their finding was that ‘gross negligence’ had not been committed by the Respondents.  Gross negligence is defined in the Code as follows.

“An employee is negligent if he/she does not take reasonable care in the performance of his/her duties to avoid acts or omission he/she can reasonably foresee would likely cause loss danger or injury “

An analysis of the evidence as led proved that the Respondents did advise the security guard to keep monitoring the area where the equipment was left. Before that they had called the Plant Manager who gave them the option to cover the pump and inform security. The NEC Appeals Committee found the actions of the Respondents to be reasonable in the circumstances. That is why they interfered with the Disciplinary Committee findings and found the Respondents not guilty. The Appellant submission in this court is that all Respondents did admit in the hearings that they were aware of the attendant risk of leaving the pump outside the store room. They had also intimated that they would have handled the pump differently if it were their personal property. The standard of care had thus not been met in this case.

This court sitting as an appellate court can only interfere with the findings by the NEC Appeals Committee should this court find that there was a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. The court was aptly referred by the Appellant to Reserve Bank of Zimbabwe vs. Corrie Granger and Anor SC 34/2001. I am satisfied that the factual findings made by the NEC Appeals Committee do not fall outside the realm of reasonableness. The appeal clearly stands to be dismissed.

IT IS ACCORDINGLY ORDERED AS FOLLOWS;

The appeal be and is hereby dismissed; and

The determination by the NEC Appeals Committee is upheld.

The Respondents are to be reinstated to their original positions without loss of salary/benefits with effect from the date of unlawful dismissal.

In the event that reinstatement is no longer an option, the Appellant shall pay to Respondent damages in lieu of reinstatement the quantum of which is to be agreed upon by the parties failing which the parties are to approach this court for quantification.

Wintertons Legal Practitioners, For Appellant Mutindi legal Practitioners, For 1st to 3rd Respondents