Benjamin Musanhi v Premier Forklift Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/293/16
HARARE, 29 FEBRUARY 2016
CASE NO. LC/H/1005/15
JUDGMENT NO. LC/H/293/2016
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/293/16

HARARE, 29 FEBRUARY 2016			              CASE NO. LC/H/1005/15

AND 13 MAY 2016

In the matter between:-

BENJAMIN MUSANHI						Appellant

And

PREMIER FORKLIFT SERVICES				Respondent

Before The Honourable E. Muchawa, Judge

For Appellant	Mr C. Chigwada (Trade Unionist)

Respondent	Mrs R.T.L. Matsika (Legal Practitioner)

MUCHAWA, J:

This is an appeal against a determination of the General Manager who sat as an appeals authority.  The general manager confirmed the determination of the disciplinary hearing committee which found the appellant guilty of gross negligence and ordered his dismissal.

The appellant was employed by the respondent as a forklift operator from the 21st of August 2006 to the 3rd October 2015.

On the fateful day of the 3rd October 2015 at around 16.30 hours, the appellant was operating a forklift loading tobacco bales onto a truck driven by a Mr Dhaure.  He finished loading then proceeded to cover the bales at the request of the driver as it had started drizzling.  At this point appellant was working with a net tier, one Arthur Balicholo.  Appellant’s role was to lift the tarpaulin using the forklift onto the top of the trailer and bales.  The net tier would spread the tarpaulin.

After the net tier finished spreading the tarpaulin and was still on top of the load, the appellant reversed the forklift.  This was to enable completion of the covering task. This is when a loud scream was heard coming from underneath the trailer that had been loaded.  The appellant stopped the forklift and established that one Heaven Chipanda, a clerk had been injured on his hand which was crushed between the head guard of the forklift and the edge of the trailer.  Heaven Chipanda was severely injured leading to amputation of his hand.

The appellant is disgruntled and has lodged this appeal on three grounds which all essentially question the propriety of the verdict of guilty in the circumstances.  In the other words, the question is whether a finding of gross negligence is supportable on the facts.

The law to be applied in casu  is the Code of Conduct for the National Employment Council for the Transport Operating  Industry, Statutory Instrument 67 of 2912.  The offence of gross negligence is provided for under section 2.3.1 of the Code.  An employee is said to be grossly negligent if there is obvious/aggravated/excessive proven negligence.

Further, an employee is negligent if he does not take reasonable care in the performance of his job to avoid acts or omissions which he can reasonably foresee that would be likely to cause loss or danger or injury.

Case law has also shed some light on what gross negligence is.  In deciding whether the conduct of the appellant constitutes gross negligence, I have been directed to the case of ZEETA Manufacturers (Pvt) Ltd v Zimbabwe United Freight Company Ltd 1996 (1) ZLR 337 (HC).

Gross negligence is said to be a phrase that has defied precise definition.  The case cites the locus classicus case of Rosenthal v Marks 1944 TPD 172 where Murray J started about gross negligence.

“Gross negligence (culpa lata, crassa) connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard of duty …”

In the case of Bickle v Joint Ministers of Law and Order 1980 (2) SA 764 (R) it was observed that in certain circumstances, such as in the case before him, the element of mens rea is absent and an objective test must be applied.  It was further held,

“When an objective test is applied gross negligence is no more than ordinary negligence of an aggravated nature.  How aggravated must negligence before it becomes gross negligence is a matter that can only be decided on the facts of each case.”

I now turn to apply the law to the facts of this matter.

It is the respondent’s case that the appellant was grossly negligent in that he did not check the surroundings before reversing.  By so doing he is alleged to have breached the duty of care which he held towards his own and others’ health and safety in terms of the operating procedures set out in the respondent’s Forklift  Operator Development Program which he had gone through as well the general road traffic law.  A further duty is alleged to be that of always checking blind spots and at all times keeping a proper look out for what is happening around the area.

On the other hand, the appellant argues that he exercised reasonable care and could not reasonably have been expected to know of the injured party’s presence under the trailer.  This he argues, was because it was only him and the net tier who were working at the area in question and they were both accounted for when he reversed.  Further, it is argued that the injured party whose duties as a clerk were in the warehouse, had no business being under the trailer and he sneaked therein at an unknown stage in the covering of the bales.

It is further contended that the extent of the injury suffered does not translate to gross negligence.  Applicant concludes by saying this event could not have been foreseen nor avoided on his part.

The record shows that at the time of loading of the bales one Lazarus Taruvinga from Logistics and Daure the driver of the truck were present together with the appellant and the net tier Balicholo.  The driver Daure and Lazarus Taruvinga proceeded into the warehouse leaving only the appellant and Balicholo to attend to covering the bales.  Balicholo requested the appellant to lift and place the tarpaulin on top of the load.  This was done and the net tier proceeded to spread this over the load.  Needless to say, the tarpaulin was hanging over the trailer.

The reversal of the forklift has part of completing the process of covering the load.  The injured party, out of his own volition and uninvited offered his help and sneaked under the trailer where he was invisible to appellant, the net tier and the security personnel, due in part to the hanging tarpaulin.

The argument advanced by the respondent that the appellant and the net tier should have been aware that the injured party was assisting them and that the task at hand requires the three employees to coordinate their actions, is unsupported by the record.

Further the contention that the appellant was negligent in not having requested from his supervisor, additional assistance is without merit.  The accident was not caused by the fact that only two employees were executing the task.  If the injured party had not gotten himself under the trailer in a bid to help, the two would still have safely completed the task albeit within a longer period.

This is the kind of accident I would qualify as a freak accident.  I find that it was the intervention of the injured party which was new and independent from the task at hand which really caused the accident.  (See Mbulawa v Mutandiro 1989 (3) ZLR 83 (SC) and Bickle v Ministers of Law and Order 1980 ZLR 36).

The appellant, in my opinion exercised due care and attention but the conduct of the injured party was such as not to be reasonably foreseeable by him.  The appellant kept a proper look out and accounted for the people on site.  In a workplace inhabited by adults, I do not believe checking blind spots extended to climbing down from the forklift after loading the tarpaulin and lifting such overhanging tarpaulin to check under the trailer.

I also believe that the duty spelt out in the operating procedure that all employees have a duty of care towards their own and others’ safety and health at the workplace extended to the injured party, in the same way that pedestrians are also expected to exercise a duty of care relative to drivers on the road in order to avoid accidents.

In the circumstances I find that the appellant’s conduct in the circumstances cannot be categorized as obviously aggravated or excessive proven negligence.  Neither can one say he did not take reasonable care in the performance of his job so as to avoid acts or omissions which are reasonably foreseeable as likely to cause loss or danger or injury.  I definitely do not think there was recklessness and an entire failure to give consideration to the consequences of his actions, by the appellant.

I turn to the case Bickle v Ministers of Law and Order 1980 ZLR 36 to resolve the question about whether or not the extent of the serious injury suffered translates the conduct of the appellant to gross negligence.  It was held in Bickle supra that it would be quite illogical to use the extent of the damage suffered to conclude that the act involved constituted gross negligence especially where there was an unforeseeable event involved.  Similarly, I find that though there was an unfortunate loss of a hand of a fellow employee, that does not therefore mean that the appellant was grossly negligent.

Accordingly the appeal succeeds and I order as follows;

The decision of the disciplinary hearing committee and that of the general manager are set aside.

The respondent is ordered to reinstate the appellant without loss of salary and benefits from the date of unlawful dismissal

In the event that reinstatement is no longer an option, the parties should negotiate and agree on damages in lieu of reinstatement failing which, either party can approach this court for quantification.

Wintertons, respondent’s legal practitioners