Clephas Jakwi v [Respondent Name Not Stated]

### Preamble
JUDGMENT NO. LC/H/89/16
IN THE LABOUR COURT OF ZIMBABWE
HELD AT HARARE ON 30th JULY, 2015
CASE NO.
JUDGMENT NO. LC/H/---/16
---------




IN THE LABOUR COURT OF ZIMBABWE

HELD AT HARARE ON  30th JULY, 2015                     CASE NO. LC/H/275/14

AND 19TH FEEBRUARY, 2016				X REF. LC/H/APP/562/14

In the matter between:-

CLEPHAS JAKWI                                                          -APPELLANT

This is an appeal against a determination by the Respondent Managing director handed down on the 7th of March 2014 which determination altered an earlier decision by the Respondent Disciplinary Committee to impose a final written warning with an addition to pay Respondent for cost of hiring a recovery vehicle. The Managing Director altered the penalty to a heavier penalty of termination with immediate effect.

The background facts to the matter are as follows;

The Appellant was employed by the Respondent as a Cross Border Driver in August 2010. On the 18th of December 2013 he allegedly went off route and stopped in Chivhu which is his home area where he then put up for the night. On the following day the truck got stuck in the mud due to heavy rains that had fallen overnight. The Appellant informed his Supervisor of the situation. Thereafter he then hired a recovery vehicle which attempted to remove the truck from the mud. The

recovery company failed to remove the truck. Upon informing his superior the superior then went to the site. An additional recovery vehicle was brought then at a high cost to the Respondent.

The Respondent levelled charges of misconduct i.e. Firstly, violation of Section 2.3.1 Gross Negligence in that Appellant had driven H840 into an area that was wet and that vehicle eventually got stuck and he failed to report the truck was stuck and he failed to communicate the incident on time thereby failing to deliver customer goods in time on; secondly, a violation of Section 3.1.4 i.e. Disobeying a lawful order given by the employer in that Chivhu is not a designated stopping or parking area. The Respondent further alleged that Appellant had misrepresented that he was at an offloading point when in fact he was stuck in Chivhu. The Appellant was arraigned before a Disciplinary Committee on the 24th of January, 2014. The Disciplinary Committee found him guilty of negligence and causing damage to customer goods. They imposed a penalty of Final written warning. The Appellant was to also meet the cost of recovery of Vehicle H840 amounting to US$2 805.00 which amount was to be paid by the 31st of August 2014. The Final Written warning was valid for 12 months.

The Appellant exercising his rights under the Code of Conduct appealed to the Managing Director. The Managing Director in his determination altered the penalty to a heavier penalty of termination from employment with immediate effect. The Appellant was aggrieved and noted the present appeal.

The grounds of appeal as outlined in the notice of appeal are as follows;

The Managing Director misdirected himself and misrepresented facts by maintain that the cargo which appellant was carrying got damages by the rains yet it stands a fact that the customer goods were never damages as evidenced by the delivery note, see copy marked A which does have a provision which gets to be signed by the recipient to confirm that his/her consignment was delivered in good order. See copy marked A.

Respondent through the Managing Director failed to observe that Gross negligence charge preferred by the complainant is neither here nor there, since by definition, an employee is said to be negligent, if he does not taken

reasonable care in the performance of his job to avoid acts or omission, which he can reasonable foresee that would be likely to cause loss or danger or injury as can be observed this charge automatically falls away since there is no element.

Of a loss caused by the actions of appellant, but rather an unforeseen mishap of the truck having to get stuck in the made, caused by a natural occurance “raining”.

Respondent states in his response to an appeal by the complainant, that appellant failed to follow a lawful instruction, yet failing to indicate which instruction appellant failed follow, to justify his overturning the determination by the Disciplinary Committee.

At the initial hearing of the appeal Respondent filed on application to adduce further evidence in the form of minutes of the first Disciplinary Committee hearing held on the 29th of January, 2014. The application was duly granted by this court.

The three main issues raised in this appeal are the following. The first issue is that the Appellant alleges that the three charges levelled were not sustainable if due regard is to be given to the fact that the consignment was received in good order. The Appellant relied on the consignment note as evidence. The consignment note has to be signed by the customer upon taking delivery. The Appellant submission is that client having signed and indicated the goods were received in good order there was no basis for the conclusion reached by the Managing Director which conclusion resulted in him imposing a heavier penalty. The Respondent had also not placed documentary proof of any damage to the consignment as to warrant the heavier penalty, imposed.

The Respondent position is that the consignment note is merely an indemnity form which would not stop the client from complaining that its goods had been damaged. In this case the Respondent suffered financially through recovery costs paid and also the potential damage to customer relations. In any event evidence in the form of invoices/quotations had been tendered in the disciplinary hearing.

It seems clear to me that the issue raised by the appellant is irrelevant when due regard is had to the charges levelled against him. The charges levelled were very serious allegations. The Managing Director after considering his appeal felt that

the penalty imposed by the Disciplinary Committee was disproportionate to the charges. He consequently increased the penalty. Whether or not there was actual damage to the consignment was clearly immaterial. There was in any event potential prejudice that the respondent stood to suffer in terms of its relationships with the client. The Managing Director sitting as an appellate authority clearly did not err.

The second issue raised in this appeal is that the charges of wilful disobedience to a lawful instruction were not sustainable in view of the fact the Appellant had been given instructions by his superior, Mr Chadane to stop over in Chivhu. As such any undesirable elements or mishaps were unforeseen by him. He could not have foreseen that it would rain heavily overnight and that the truck would get stuck in the mud. The Disciplinary Committee members had also agreed with his position and indicated that Chadane would share the responsibility with him to reimburse the recovery costs.

It is clear on the basis of the minutes of the disciplinary hearing held on the 29th of July 2014 that Chadane unequivocally denied that he had given the Appellant authority to park in Chivhu his home town. Chadare however did acknowledge that sometimes driver did park in Chivhu.

Once it is accepted that Appellant had no authority from his superior to park in Chivhu it follows that the charge of wilful disobedience to lawful order was properly levelled. There was according to the papers an instruction not to park in Chivhu. Even if Appellant had been granted such authority to park in Chivhu against the standing instruction it seems clear to me that the Appellant was grossly negligent in that he then parked in a place which was unsuitable considering that he was carrying a heavy load, it was rain season and therefore possibility of overnight rainfall was present, the conditions on the ground were clearly unsuitable as not secure which had resulted in the truck getting stuck the next morning. The Appellant should have against these conditions foreseen that the truck would get stuck. He was clearly grossly negligent. He was therefore properly found guilty on the charge

of Gross Negligence. That charge being a very serious charge and taking into account the aggravating feature which the Managing Director referred to i.e. that he drove and parked in a wet area resulting in the truck getting stuck, that the customer goods were consequently damaged by the rains and huge cost paid by Respondent in recovery costs, the Managing Director properly imposed a penalty of termination of employment.

The appeal is accordingly dismissed with no order as to costs.