Judgment record
Daniel Mukudu v Glens Removals & Storage Zimbabwe
LC/H/275/2014LC/H/275/20142014
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### Preamble IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/275/2014 HARARE, 7TH MAY, 2014 CASE NO. LC/H/1052/13 AND 23rd MAY, 2014 JUDGMENT NO LC/H/275/2014 --------- IN THE LABOUR COURT OF ZIMBABWE JUDGMENT NO LC/H/275/2014 HARARE, 7TH MAY, 2014 CASE NO. LC/H/1052/13 AND 23rd MAY, 2014 In the matter between DANIEL MUKUDU APPELLANT AND GLENS REMOVALS & STORAGE ZIMBABWE RESPONDENT Before The Honourable B.T. Chivizhe, Judge For Appellant : Mr J.J. Gumbo (Legal Practitioner) For Respondent : Ms J. Zindi (Legal Practitioner) CHIVIZHE, J. This is an appeal against the decision by the Respondent’s Chief Executive Officer dated 25th November, 2013, which decision confirmed an earlier decision by the Hearing Committee to dismiss Appellant from employment. The material background facts are as follows: The Appellant was employed by the Respondent as a truck driver. On the 11th of October 213 he left Harare on a trip to Zambia. He returned on the 29th of October 2013. He had been given a full tank of diesel and 150 litres header tank for the trip. Upon his return from the trip he had a shortfall of 155 litres. The Appellant was charged with misconduct i.e. contravening Section 2.3.1. of the Transport Operating Industry Code, Statutory Instrument 67 of 2012 it being alleged that he had been grossly negligent in incurring the shortage. The Appellant was found guilty on the charge and a penalty of dismissal was imposed. The Appellant was dissatisfied and noted an appeal to the Chief Executive Officer as provided under the Code. His basis of appealing was, amongst other things, that the Hearing Committee had grossly misdirected itself; in failing to find that the investigations procedures under the Code had not been complied with; in convicting the Appellant on the charge in the absence of evidence being tendered to support the charge; in ignoring the evidence of the Appellant’s of cellphone calls made in distress when the truck had developed mechanical problems; in relying on the evidence in the form of a G.P.S. report which was never tendered in evidence, in convicting him on the charging in the absence of evidence on the mechanical status of the vehicle. The Appellant also raised the issue that the Hearing Committee grossly misdirected itself when it solicited and accepted evidence of Mr B. Mukakatanwa, a Management Representative on the Disciplinary Committee. The Chief Executive Officer in a decision handed down on 25th November 2013 dismissed the Appellant’s appeal thereby upholdings the findings of the Hearing Committee. Dissatisfied the Appellant then noted the present appeal. The Appellant has raised lengthy grounds of appeal. It is clear however that the Appellant is raising both procedural and substantive issues. In regards procedure he has alluded to irregularities in the disciplinary procedures which would have the effect of vitiating those proceedings. On the substantive the Appellant raises as the main issue the issue as to whether on the basis of the facts he was properly forward guilty of charge of gross negligence as levelled. I shall address initially the procedural irregularities. It is trite that not all procedural irregularities will vitiate proceedings. In order to succeed in having the proceedings set aside on the basis of a procedural irregularity it must be shown that the party concerned was prejudiced by the irregularity. See Tichawona Nyahuma vs. Barclays Bank (Private) Limited SC 67/505. The first irregularity raised is that investigation procedures laid down in the Code where not complied with. Whilst the point was raised in Appellant’s grounds it was not elaborated in the Appellants heads neither was it elaborated in oral submissions before the Court. I am disinclined to allow the point. The second procedural irregularity raised is that the Hearing Committee erred when it allowed a Management Representative on the Committee, a Mr B. Mukakatanwa, to lead oral evidence on behalf of the Respondent. It was Appellant contention that having raised in his defence the fact that the truck developed an air lock and this affected fuel consumption the evidence tendered by Mr Mukakatanwa which was based on the effect of air lock was clearly prejudicial him especially as the Chief Executive Officer had then relied on the evidence to found conviction. The Appellant made reference to paragraph 9 of the Chief Executive Officer’s letter. The Respondent’s position was that the minutes do that show that such evidence was ever tendered by Mr Mukakatanwa. Whilst it was conceded that the Chief Executive Officer in paragraph 9 of his letter made reference to a submission by Mr Mukakatanwa it is not clear what terms submissions refers to in the context of the letter. It is my considered view that there was indeed a serious procedural irregularity sufficient to vitiate the disciplinary proceedings. Despite Respondent’s protestations it is clear Mr Mukakatanwa who was sitting as a Managerial Representative did indeed give evidence to the Hearing Committee. Whilst the minutes themselves do not reflect that the Chief Executive Officer’s letter clearly shows that Mr Mukakatanwa did make representations to the Hearing Committee and the Chief Executive Officer placed reliance on the submission by Mr Mukakatanwa to found conviction. The argument raised by Respondent that the term ‘submission’ cannot be read to mean evidence. It is clear the Chief Executive Officer was in fact referring to evidence is porous tendered because in the next sentence he also refers to a ‘submission’ by Mr Matimaire who it is an undisputed fact gave evidence as Appellant’s witness. Whilst it is not easily discernible what the exact nature of evidence led by Mr Mukakatanwa was, what it is clear that the evidence tendered influenced the Chief Executive Officer to found a conviction on the charge. This is buttresses by statement in paragraph 9 of the Chief Executive Officer which reads; “9. Mr B. Mukakatanwa’s submission was important and necessary. 10. Mr Matimaire’s submission was also important and necessary. Submissions contained in (9) and (10) above assisted in the final analysis of the charge that you were facing”. The Appellant has in my view clearly established prejudice. The proceedings of the Hearing Committee clearly cannot stand. Neither can the decision by the Chief Executive Officer. The Respondent can, at its discretion, institute from proceedings. Having come to this conclusion it is not necessary for the Court to consider the other issues raised by this appeal. In the circumstances the appeal ought to be allowed. It is accordingly ordered as follows:- The appeal be and is hereby allowed. The determination by the Chief Executive Officer handed down on 25th November 2013 is hereby set aside. The proceedings before the Hearing Committee dated are also set aside. The Appellant is hereby reinstated to his original position without any loss of salary and benefits, with effect from the date of unlawful dismissal. In the event that reinstatement is no longer tenable the Respondent shall pay Appellant damages in lieu of reinstatement the quantum of which is to be agreed upon by the parties failing which either party can approach the Labour Court for quantification of damages. Atherstone and Cook – Appellant’s legal practitioners Mtetwa and Nyambirai – Respondent’s legal practitioners