Beatus Mandeya v Sakunda Logistics

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/357/14
HELD AT HARARE 9TH JUNE 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/357/14

HELD AT HARARE 9TH JUNE 2014			CASE NO LC/REV/H/70/13

& 20TH JUNE 2014

In the matter between:-

BEATUS MANDEYA				Appellant

And

SAKUNDA LOGISTICS				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellant		T Chakabva (Legal Practitioner)

For Respondent		 V Tongoona (Legal Practitioner)

MAXWELL, J:

Beatus Mandeya (Mandeya) was employed as a driver by respondent.  It is alleged that on 6 April 2013 he was driving a Sakunda truck horse registration number ABG 5272 and Tanker registration number ABZ 9757.  He loaded 39 941 litres of petrol at Msasa and discharged 37 957 litres on the 26 April 2013 in Zambia.  Mandeya realised a loss by meter of 1984 litres and 1704 after factoring loss in transit.

Mandeya was charged with gross negligence in terms of section 14 of

S.I. 67 of 2012 after failing to account for the loss.  The Disciplinary Committee found him guilty and subsequently reached a decision to dismiss him.  On

28 August 2013 Mandeya filed an application for review.  He also appealed against the decision to dismiss him on the same date.  The grounds for review include that

people who were not part of the disciplinary committee decided the matter against the applicant

the record of proceedings was incomplete and inaccurate

the charge was vague and embarrassing

Mr Hungwe was allowed to chair the proceedings in circumstances where he had already prejudged the matter

There was a pending dispute before the Ministry of Labour and Social Welfare on the computation of in transit losses and measurement of fuel between the same parties.

The grounds of appeal are

That respondent erred in allowing a person who was not part of the Disciplinary Committee to determine the matter.

The Disciplinary Authority grossly misdirected itself in finding the appellant guilty of gross negligence when the onus to finding him guilty had not been discharged on a balance of probability as there was no nexus between the appellant’s action and the loss of the fuel.

The Disciplinary Authority erred in failing to apply the law relating to gross negligence.

The Disciplinary Authority erred in making a finding that was inconsistent with the evidence led, namely that the appellant seriously contradicted himself and was dishonest.

The Disciplinary Authority grossly misdirected itself is dismissing the appellant without considering mitigatory factors, namely:

The appellant was a first offender and not unrepentant as alleged

The appellant had worked for the respondent for 5 years.

On 7 October 2013 respondent filed a notice of response to the appeal.

There was no response filed in respect of the application for review.  On 25 October 2013 appellant filed heads of argument and respondent filed heads of argument on 12 November 2013.  On 29 January 2014 appellant filed supplementary heads of argument.  This judgment covers both the review and the appeal.

At the hearing respondent sought to argue that if the appeal and review were to be heard at the same time then an opportunity should be given to it to make an application for condonation for  late filing of response to the review application.  The notice of set down had been served on respondent’s counsel on 5 May 2014.  The hearing was on 19 May 2014.   Respondent had close to two weeks to make the application for condonation.   By the hearing date no written application had been prepared.  Only an oral request to postpone the review hearing was made.  The court did not grant the request and proceeded to hear the applicant in terms of Rule 22 of the Labour Court Rules S.I. 59/2006.

I will first deal with the application for review.  The first issue is whether or not people who were not part of the disciplinary committee decided the matter against the applicant.  Pages 22 to 28 contains the disciplinary proceedings held on 22 July 2013.   At page 28 the concluding statement is that “determination to be given at a later date.”  On 6 August 2013 the letter dismissing applicant from employment was written by S Manyara as the Disciplinary Authority.  In the letter he refers to the disciplinary committee having had a deadlock on the determination.  there is  no evidence on record of the disciplinary committee subsequently meeting and reaching the deadlock after indicating that the determination will be given at a later date.  However in terms of section D.6 of S.I. 67 of 2012

“In the event of a deadlock by the Disciplinary Committee it shall forward a copy of the signed record of proceedings to the Chief Executive for a final decision.”

There is no requirement that the deadlock be recorded.  Without a member of the disciplinary committee challenging the allegation that a deadlock was reached, there is nothing irregular about what was done.  Applicant also challenged the authenticity of the letter of dismissal on the basis that it was signed by someone on behalf of the author.  Again I find nothing irregular about that unless if the author disowned the contents of the letter.  I therefore find no merit in the first ground of review and I dismiss it.

The third ground of review is that the record of proceedings is incomplete and inaccurate.  Applicant pointed out that a Mr S Gutsa was summoned by the Disciplinary Committee and gave evidence which was omitted from the record.  He also alleges that an application was made for Mr Hungwe who was chairing the Disciplinary Committee to recuse himself.  The application and determination thereon is not on record.  This ground of review has merit as a record of proceedings must be complete and reflect an accurate record of what transpired.  I therefore  uphold this ground of review.

The fourth ground of review challenged the disciplinary committee’s decision to proceed despite the applicant having requested for clarification of the charge.  The committee was of the view that all the relevant information was furnished so the hearing should proceed.  The issues raised by the applicant were pertinent to the deliberations.  On page 23 the applicant’s representative raised four issues

How the standard of in transit loss was arrived at

Why there was an omission of dip measurements

Whether the accepted transit loss did factor in the number of days involved.

Whether an expert was involved

During the hearing when complainant was asked about whether any scientific research  had been done he indicated that he would refer to the technical team.  The technical team was not part of the proceedings.  I am satisfied that it was irregular for the disciplinary committee to proceed with the hearing without attending to the issues raised by the applicant.  I therefore upheld this 4th ground of review.

The fifth ground of review alleges bias on the part of the

chairperson of the Disciplinary Committee.  It is alleged that he had already prejudged the matter and was therefore disqualified from hearing the matter.  The apprehension of bias arises from his letter in response to applicant’s counsel letter of 15 July 2013 in which they requested that the disciplinary hearing should not be held.  The substance of the letter is mainly on the collective job action and that there should be negotiations between the employer and employees representative on developing standards for use concerning in transit losses.  Mr Hungwe’s letter of 16 July 2013 advises that applicant was not part of the issue that was purportedly referred to the Ministry of Labour & Social Welfare.  He also responded to the issue of the collective job action.  I do not see how this can be termed prejudging the matter.  On page 24 on which the charge was put to the applicant during the disciplinary hearing, the issue is only on the in transit loss.  Applicant did not elaborate on the apprehension of bias in both heads of arguments and supplementary heads of arguments.  I find no merit in this ground of review and I dismiss it.

The second and sixth grounds of review were abandoned.  In the final analysis I find merit in the third and fourth grounds of review.  Resultantly the proceedings were vitiated by these irregularities and are therefore set aside.  It is therefore not necessary to deal with the appeal as the proceedings have been set aside.

Accordingly

The proceedings of the Disciplinary Committee be and are hereby set aside.

A hearing de novo be held within 30 days of receipt of this order before a different disciplinary committee

Applicant reverts to his status immediately before the vitiated disciplinary hearing was conducted.

Respondent shall pay costs of suit.

Kwenda & Associates, appellant’s legal practitioners

Gwaunza & Maposa, respondent’s legal practitioners