Elvis Machikiti (Designated Agent) v Premier Milling (Pvt) Ltd & Anor

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/680/2016
HARARE, 13 SEPTEMBER 2016 &
CASE NO LC/H/LRA/39/2016
4 NOVEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/680/2016

HARARE, 13 SEPTEMBER 2016 &			 CASE NO LC/H/LRA/39/2016

4 NOVEMBER 2016

In the matter between

ELVIS MACHIKITI (DESIGNATED AGENT)			APPLICANT

Versus

PREMIER MILLING (PVT) LTD					1ST RESPONDENT

And

SPOIL CHIBWIRO							2ND RESPONDENT

Before the Honourable Muchawa J

The Applicant in Person

For the Respondent	E Rusere  (Trade Unionist)

MUCHAWA J:

This is an application for confirmation of a draft ruling and order made in terms of section 93 (5a) and (5b) of the Labour Act [Chapter 28:01] as amended.

The applicant is a designated agent for the National Employment Council for the Food and Allied Industries.

The first respondent, Premier Milling (Pvt) Ltd is a company operating in the Food and Allied Industries.

The second respondent was employed by the first respondent as a driver from 1997 until his dismissal in June 2015.

On or about 26 May 2015, the second respondent was instructed to deliver goods from Harare on the Bulawayo route. Upon his return he drove to Machipisa and at the shopping centre hit a stationery commuter omnibus driven by a Mr Mudzwawo. It is alleged that he did not stop but drove away from the scene of the accident. He was only caught at the first respondent’s gate by Mr Mudzwawo who had given chase. A fist fight ensued and the second respondent was taken to the police station. The vehicle the second respondent had been driving was left running and unattended.

It is alleged that the second respondent paid an admission of guilt fine at the police station. Arising from these events, the first respondent then charged the second respondent of misconduct in terms of the National Employment Statutory Instrument 15 of 2006. The charges were:

(4 a)	any conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract or employment, and

(4 g) 	habitual and substantial neglect of his duties.

An internal disciplinary hearing found the second respondent guilty as charged and dismissed him from employment.

The second respondent referred the matter for conciliation or possibly arbitration before the designated agent of the NEC Food and Allied Industries. This culminated in the draft order and ruling by the applicant which is sought to be confirmed.

The applicant found that the charge of habitual and substantial neglect of duty was unsustainable in the circumstances as there was no repeated failure to perform one’s duties over a period of time.

It was found however that the other charge had been properly upheld. This was on the basis that the first respondent had set the standard of care for company vehicles by the second respondent who failed to exercise the degree of diligence expected. This was on the basis that he had left the vehicle running and unattended, had been involved in a fist fight at the company gate whilst driving a branded company vehicle thus bringing the first respondent’s name into disrepute. It was considered too that he had failed to stop when he was involved in an accident and had not followed the procedure of reporting the accident to the police as expected of all drivers. The applicant concluded that the second respondent had failed to safeguard the assets of the first respondent and also to promote and protect the employer’s image.

An allegation of bias by the hearing officer raised by the second respondent was dismissed by the applicant as an afterthought which was not raised before the two internal hearings.

The verdict of guilty was therefore upheld together with the dismissal penalty. The applicant prays that I confirm the draft ruling and order. This position is also supported by the first respondent who adds that the second respondent put other people’s lives in danger and was not remorseful.

Mr Rusere, second respondent’s representative argued that I should not confirm the draft ruling and order as the submissions before me are not labour related but are of a criminal nature, for instance negligent driving and that this should be handled within the criminal law arena.

It was further contended that the decision reached was premised on the fact that the second respondent was not remorseful and that he was supposed to lead by example. In this regard, it is argued that the fact that the second respondent had served for eighteen years with a blameless record, was not considered in mitigation so as to attract a less severe penalty. The National Employment Code of Conduct is said to make dismissal a penalty of last resort.

The second respondent prays that I decline to confirm the draft order and ruling and substitute this with my own order.

A perusal of the draft ruling shows the applicant applied his mind to whether or not there existed a fair reason to dismiss the second respondent on the charges levelled against him. He relied on the labour matter of Unitrans Zululand (Pvt) Ltd v Cebukhaly 2003 7 BLL 688 (LCA) for this test.

The reasons outlined above on which the second respondent was found guilty of conduct inconsistent with one’s express or implied conditions of his contract of employment are in line with labour law principles.

In the case of Clouston & Company Limited v Corry [1906] AC 122 at 129 PC cited with approval in Tobacco Sales Floors Ltd v Chimwala 1987 (2) ZLR 210 (SC), inconsistent conduct is said to denote conduct on the part of the guilty party which bespeaks disowning or repudiation of the contract of employment. The conduct complained of must be such that no reasonable person would deem it compatible with the class or type of employment to which that contract relates.

The first respondent aptly demonstrates that for a driver to be involved in a hit and run accident and flee from the scene of the accident, then be involved in a fist fight and leave the vehicle running and unattended, is incompatible with the contract of a driver.

It does not matter that the same circumstances may give rise to a criminal offence. They have been adequately shown to constitute conduct inconsistent with the driver’s contract of employment.

The arguments raised by second respondent against the penalty of dismissal are unsustainable. In the case of Standard Charered Bank Zimbabwe Ltd v Chapuka S 125-04 at p 7 it is held:

“Conduct which is found to be inconsistent or incompatible with the fulfilment of the express or implied conditions of a contract of employment goes to the root of the relationship between an employer and an employee, giving the former a prima facie right to dismiss the later.”

The employer took a serious view of the offence and the question of a penalty less severe than dismissal being available for consideration does not then arise. See Circle Cement (Pvt) Ltd v Chipo Nyawasha S-60-03 at page 5. This means therefore that the mitigatory factors were considered and were outweighed by the aggravating ones.

Accordingly the draft ruling and order cannot be impugned.

IT IS ORDERED THAT:

The ruling by designated agent Elvis Machikiti of 17 November 2015 be and is hereby confirmed with no order as to costs.