Austine Mwale v ZUPCO (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/804/2016
HARARE, 12 OCTOBER 2016 &
CASE NO LC/H/52/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/804/2016

HARARE, 12 OCTOBER 2016 &				           CASE NO LC/H/52/2016

16 DECEMBER 2016

In the matter between

AUSTINE MWALE							APPELLANT

Versus

ZUPCO (PRIVATE) LIMITED					RESPONDENT

Before the Honourable Muchawa J

The Appellant in person

For the Respondent	Ms A Mapanzure (Legal Practitioner)

MUCHAWA J:

This is an appeal against a determination of the respondent’s chief executive officer.

The appellant was employed by the respondent as a risk control assistant from 18 February 2007 to 24 November 2015when he was suspended from duty pending disciplinary proceedings.

Charges were preferred against the appellant in terms of the Employment Code of Conduct for the Transport Operating Industry, Statutory Instrument 67 of 2012. They were for—

damaging the company’s property;

stealing/theft, and

gross negligence

The facts giving rise to the charges were put as follows:

It is alleged that in the period between March 2015 and November 2015 you were manning new buses within the fence and it was discovered that fuel savours (sic) were stolen from the buses and thrown behind the durawall whilst you were on duty.

It is further alleged that all buses were parked with diesel but it was discovered that the buses had no fuel whilst the fuel caps were not broken for us to suspect external theft. It was noted that keys for the fuel tanks were separated from the bunch of other keys. It is further alleged that you were using a hosepipe to siphon (sic) the diesel from the buses and taking it away through the broken durawall panel.

It is also alleged that some of the keys were found on the fuel tanks and forty-seven buses were vandalized their fuel savours (sic) and thrown away but you never reported such incidents for the period you were on duty. It was also noted that you used to take bus keys as there was one bus which you claimed that you used to rest whilst on duty. One of your major duties as security personnel was to ensure that all new buses are safe but you failed to perform it as expected for some of the buses’ fuel savours (sic) were damaged and thrown away.

The disciplinary committee found the appellant guilty as charged and preferred final warnings in respect to the charges of damaging the company’s property and theft. Dismissal was the penalty given for the negligence charge.

On appeal to the Chief Executive Officer, the appellant was acquitted of the charges of theft and damaging the company’s property. However the penalty and verdict relating to the charge of gross negligence were upheld.

Disgruntled, the appellant has noted this appeal on these grounds:

The disciplinary authority grossly erred in dismissing the appellant for not reporting the damage, and theft of property when the record shows that the appellant reported to his immediate superiors who promised to investigate.

The disciplinary committee erred in ruling that the appellant failed to prevent the theft of servers (sic) when these were stolen when the appellant was on leave.

The disciplinary authority selectively applied the law by dismissing the appellant for failing to discharge security personnel duties when there were also other security personnel and company staff working in the warehouse.

The disciplinary authority grossly erred by dismissing the appellant for not protecting fuel and servers (sic) when those were never handed over to him to keep custody.

The appeal is opposed.

Ms Mapanzure, counsel for the respondent raised the preliminary point that the grounds of appeal seem to be challenging the disciplinary committee’s decision yet appeals to this court are available against the decision of the chief executive officer. In this respect the appeal was said to be fatally defective and it was prayed that I strike it off.

The appellant submitted that his grounds of appeal were properly before this court.

I upheld the point in limine in respect to ground of appeal 2, only as this is the only ground seeking to impugn the determination of the disciplinary committee. I proceeded to hear the appeal on the remaining grounds 1, 3 and 4 as these refer to the disciplinary authority. The code in paragraph A.5.3 identifies the CEO as a disciplinary authority.

I now move to deal with the remaining grounds of appeal seriatim.

Ground 1:  Whether or not the appellant reported the damage and theft of property to his superiors

During the disciplinary hearing, the appellant submitted that on a day during the relevant period in September he saw a hosepipe in the warehouse and reported this to Mr Makunde who advised him to report to Mr Madzivire (DRO). He claims to have gone to Mr Madzivire’s office and made the report in the presence of Mrs Muchero.

Whilst Mr Makunde (RCA) confirmed being with the appellant when the issue of the hosepipe was raised with Mr Madzivire, he alleges the report was made when they met at the steps and not in the office. He claims that the appellant approached him with a hosepipe and five litre container then they approached the DRO Madzivire who said he would first carry out investigations before a formal report.

Ms Mapanzure for the respondent however pointed the court to the disciplinary hearing minutes where both the division risk officer, Mr Madzivire and Mrs Muchero refuted having received any report of the possible theft of fuel.

Mr Makunde, I note, was not a person in charge of the appellant. He was also a risk control assistant. There is also a divergence in their narration of what was reported and to whom. Whereas the appellant states he saw a hosepipe and reported it to Mr Makunde, Mr Makunde adds that the appellant had a hosepipe and a five litre container. Further, the appellant claims to have made a report in Madzivire’s office in the presence of Mrs Muchero yet Mr Makunde claims they met Mr Madzivire on the steps and made a report there. Their version of events with such inconsistencies is hard to believe.

In any event when the appellant is asked whether he made a formal report, he answers that he did not since he had reported the case. When quizzed about using an occurrence book to record such incidents, the appellant claims they were never given a book to record in. When further pushed as to why they did not request such a book, he evades the question and states they asked for lights too.

The Risk Control Department Standing Instructions Manual lists an occurrence book as one of the risk control books and records for formal reporting. The appellant concedes he did not make an entry into the occurrence book. This is a duty set out in the accepted duties of a risk control assistant.

In the circumstances there is no basis to argue that the appellant reported the damage and theft of property to his superiors.

Ground 3:  Was there selective application of the law?

It is the appellant’s case that he was unfairly punished yet he was not the only one in charge of the new buses which were vandalised. He states that he worked on the night shift only and during the day lots of other people had access to the warehouse. He lists cleaners, mechanics, other risk assistants and district risk officers. He asserts that these should have been charged too. He points too to the broken durawall to say that even outsiders could access the warehouse at any time without detection particularly as staff manning the warehouse were reduced to two instead of eight.

The appellant points to the mechanics who came to run the buses every two weeks as the ones with the expertise to dislodge the fuel saver which is mechanically fitted within the body of the bus.

He points too to the laxity of the management in placing the bus keys in the control room, not providing a separate occurrence book, not repairing the broken durawall amongst other things as a form of contributory negligence.

It was explained that the respondent did in fact charge the appellant with three other risk control assistants and each case was dealt with on its own merits. The appellant is said to have been convicted on the basis of the overwhelming evidence against him.

The position of the Supreme Court on what is otherwise called the parity principle is that it is not uncommon for the alleged ring leaders in any unlawful gathering or action to be singled out for punishment. If they are guilty, it is not in law relevant that others may also be guilty. Lancashire Steel (Pvt) Ltd v Elijah Zvidzai & Ors SC 29-95.

More recently in the case of Zimbabwe Banking Corporation v Mbalala SC 55-15 this is stated as follows:

“This does put to rest the argument about perceived selective punishment and victimisation. The respondent should face the consequences of his actions and cannot be allowed to hedge behind others.”

There is therefore no merit in ground 3 of appeal.

Ground 4 : Whether the appellant was responsible for the safe keeping or protection of the fuel and fuel savers

The appellant argues that he never had the fuel and fuel savers handed over to him so he had no obligation to protect them from theft and vandalism.

It is stated that the manager Madzivire never handed over the buses’ keys to the appellant but she placed them in the control room where everyone had access.

The respondent’s Ms Mapanzure relies on the duties of a risk control assistant as spelt out in a job description which the appellant accepts. One of the duties is that the risk control officer shall protect, safeguard the company’s property, buses in the bonded warehouse and assets. The other duty is to safely keep keys to the bonded warehouse under lock and key in the control room as well as supervise the movement of such keys from the control room. A third duty is to mann and physically inspect the company’s property and buses at the company’s premises and report all damages, occurrences or events posing a risk to security.

The Risk Control Department Standing Instructions Manual sets out that on assumption of guard duty, proper handover/takeover shall be done and shall include a physical check of premises/property ad that all outstanding reports shall be handed over in writing. It further states that an entry of the handover/takeover shall be made by both details in the occurrence book.

Through this ground of appeal and the revelation that the appellant did not make a formal report of certain incidents he encountered, the appellant is in fact admitting to having been grossly negligent by not carrying out the duties spelt out above.

In the light of the definition of gross negligence in the case of Standard Chartered Bank of Zimbabwe v Chipiningu SC 104-2002 that it connotes recklessness, an entire failure to give consideration of his actions, a total disregard of duty, the appellant cannot escape the conclusion that he was grossly negligent in the circumstances. His actions seem to me to be an extreme departure from the ordinary standard of care set out for a risk control assistant.

I therefore find no merit in ground of appeal 4.

Accordingly the appeal being without merit, be and is hereby dismissed with costs.

Chinawa Law Chambers, respondent’s legal practitioners