Bryon Muchineripi v Halwick Investments

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/55/22
HARARE, 15 FEBRUARY, 2021
CASE NO. LC/H/209/19
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IN THE LABOUR COURT OF ZIMBABWE 	       JUDGMENT NO. LC/H/55/22

HARARE, 15 FEBRUARY, 2021  		       CASE NO. LC/H/209/19

AND 25 FEBRUARY, 2022

In the matter between:

BRYON MUCHINERIPI					                      APPLICANT

Versus

HALWICK INVESTMENTS					            RESPONDENT

Before The Honourable Kachambwa J

For the Appellant			: Miss Gororo (Default)

For Respondent	                   :  A. Mugandiwa

KACHAMBWA J:

Delay

1.	The delay in the delivery of this judgment is regretted.  It was due to the parties’ failure and delay in responding to issues raised.  Consequently the judgment had to be written without a response from one of the parties on the issue of appealing on a conviction that is not on record.

The Appeal

2.	This is an appeal against the decision of the respondent’s Chief Executive Officer who in turn had upheld the decision of the disciplinary committee.  The appellant was charged and convicted of acts of misconduct in terms of the workplace code

of conduct, Statutory Instrument 26 of 2017.  The appellant was charged of “gross negligence and alternatively absence from work for more than 5 consecutive days without reasonable excuse.”  The disciplinary committee found him guilty of gross negligence and imposed a penalty of dismissal.  The penalty was upheld on appeal to the Chief Executive Officer.  There is no mention of the findings on the alternative charge.  Nevertheless the appellant included them in his appeal both to the Chief Executive Officer and to this Court.  That is clearly an error.  The only valid appeal is the one against conviction and penalty on gross negligence.

The Grounds of Appeal

3.	The grounds of appeal for the charge of negligence and the penalty of dismissal are that-

1.	The Chief Executive Officer grossly misdirected him/herself in upholding the decision of the disciplinary authority to convict and dismiss the Appellant without sufficient evidence to support the alleged offences if any under the obtaining circumstances of the Appellant’s conduct on the day in question.  In the result there has been a gross misdirection on the facts which is so unreasonable that no sensible person who applied his mind to the facts would have arrived at such a decision as the Chief Executive Officer did.

2.	The Chief Executive Officer erred at law in upholding the disciplinary committee’s conclusion that, the appellant was grossly negligent when the accident was caused by  mechanical defect which developed while the appellant was driving and it was beyond human control.

3.	The Chief Executive Officer erred at law in upholding the disciplinary committee’s conclusion of dismissing the appellant from employment without considering the overwhelming mitigatory factors to include  that the appellant is now disabled as a result of the accident which clearly outweighs any aggravatory factors which are not even there given the way the accident occurred,

4.	Basically the appellant’s argument is that there was not enough evidence to   make a finding of guilty and that the penalty is unwarranted in the circumstances.

The Background To The Charge

5.	The appellant was employed by the respondent as a truck driver.  The respondent’s trucks are fitted with a tracking system.  On the 24th of April 2019 the appellant was driving respondent’s truck, No H2219, in Durban, south Africa.  He had on board his brother and a security official.  The brother was an unauthorized passenger on board.  He failed to stop at a robot- controlled intersection and rammed the truck into a bridge in order to avoid hitting the cars that were stopped at the intersection.  As a result of the accident the security officer died, the appellant’s brother was injured and so was the appellant.  The truck and its trailer were damaged to the extent of being written off.

6.	 The tracking system report showed that-

1.	appellant was exceeding speed limits in his driving including at the time of the accident;

2.	appellant did not stop at a stop sign a few kilometers from the scene of the accident.

3.	there was freewheeling;

4.	appellant did not slow down before the accident;

7.	The appellant’s defence was that the truck had brake failure and so he could not stop it.  He decided to drive into the bridge/pillar of a flyover in order to avoid vehicles that were stationery at the intersection.

8.	It is admitted that the appellant travelled for 200km after discovering that there were problems with the brakes in that they were not functioning properly.  This is specifically confirmed by the appellant’s representative in answer to a specific question on the brakes.

Analysis of the Verdict

9.	Looking at the tracking system report and the admission of driving the truck after finding out that the brakes were malfunctioning the verdict of guilty is inescaple.  The argument that no particulars of the negligence were not listed does not assist the appellant.  Driving a truck at such speeds as high as 90 km/h is not only grossly negligent but is indeed reckless.  There cannot be any case of misdirection on the facts there.   The appellant took an extreme risk to continue driving the vehicle when it was no longer fit to be driven on the public road.  He risked loss of innocent lives and destruction or damage to property.  Both occurred.

10.	The company code of conduct defines ‘gross negligence’ as “ … if there is obvious/aggravated/excessive proven negligence.’  This fits the facts of the present case.  The respondent went to town by referring to cases that made pronouncements on “ gross negligence.”  Suffice to say that the term is said not

to fit into a straight jacket.  In Tichawana Nyahuma v Barclays Bank (Pvt) Ltd SC 67/2005, at pages 7 and 8 of the cylostyled judgment the Court said that-

“It is clear from decided cases that it is not possible to give a universally suitable definition of the term “gross negligence.”

In South Africa the same view is expressed in Government of the Republic of

South Africa (Department of Industries) v Fibre Slimmers and Weavers (PVT) Ltd 1977

(S.A) 324 (D AND CLD) where the Court said that –

“Gross negligence is not of course an exact concept lending itself to a neat and universally apt definition.  The degree of negligence which is called gross for one purpose may not necessarily be thought such for another.”

10.	In our law it has been emphasized repeatedly that an appeal court must be slow in overturning findings of fact of the court of first hearing.  The same applies here.  There are no compelling circumstances calling for the court to upset the finding of facts and the verdict of guilty.  Consequently the appeal against conviction cannot and shall not be upset.

The Penalty

11.	The appellant argued that the penalty was excessive in the circumstances, that it was not in sync with the labour laws that advocated for penalties that are educational and corrective and only punitive when these fail.  He also argued that dismissal is not obligatory.

12.	On the other hand the respondent argued that the penalty fits the offence.  Further, it was also argued that the issue of the penalty is the discretion of the employer and should not lightly be interfered with. Various authorities were cited

13.	Indeed the issue of what penalty to impose is largely the discretion of the employer.  An appeal court should only interfere where it is shown that the discretion was improperly exercised.  This position is repeated in Circle Cement (Private) Limited v Chipo  Nyawasha SC 60/2003  at pages 5 and 6 of thje cyclostyled judgement –

“Once the employer has taken a serious view of the act of misconduct committed by the employee to the extent that it considered it to be a repudiation of contract which it accepted by dismissing her from employment the question of a penalty less severe than dismissal being available for consideration would not arise unless it was established that the employer acted unreasonably in having a serious view of the offence committed by the employee.  The principle enunciated in Zikiti’s case supra was inapplicable to the decision of the disciplinary and grievance committee to dismiss Nyawasha because it was not shown to the Labour Court that its finding that her act of misconduct was of so  serious a nature as to constitute a repudiation of her contractual obligation entitling Circle Cement to dismiss her from employment was one a reasonable employer would not have made.”

14.	No justification exists for interfering with the penalty.  Mitigating factors were given and must have been considered.  This was a serious case by any standard.  The penalty is not excessive.  Therefore the appeal on penalty must also fail.

Disposition

The appeal fails on both conviction and penalty.  It is accordingly ordered as follows –

1.	the appeal be and is hereby dismissed with costs.