Evas Sithole v Zimbabwe United Passengers Company Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 FEBRUARY 2024
JUDGMENT NO LC/H/129/2024
CASE NO LC/H/1031/23
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 19 FEBRUARY 2024

JUDGMENT NO LC/H/129/2024 CASE NO LC/H/1031/23

In the matter between:-

EVAS SITHOLE	APPELLANT

ZIMBABWE UNITED PASSENGERS	RESPONDENT COMPANY LIMITED

Before the Honourable Kudya J

For the Applicant	Adrian Mugwamujani (Unionist)

For the Respondent	R. Chikwava (Legal Assistant) KUDYA, J:

This is an appeal against the decision of the Chief Executive Officer finding appellant guilty and dismissing her from work on allegations of misconduct at the work place. Brief facts of the matter are that appellant who was in the respondent’s employment was charged with misconduct emanating from the facts that she had acted negligently and caused loss of the employer’s ticket book. She was found guilty of the infraction. She appealed to the Chief Executive Officer without success hence the instant appeal.

Her appeal grounds are the following:-

The respondent grossly erred and misdirected itself at law outrageously on questions of facts findings when it found appellant guilty of alleged neglect, loss of property and dismissing her despite findings by the disciplinary committee that the ticket book lost was not handed to the appellant.

The respondent grossly erred and misdirected itself outrageously on questions of law of evidence when it found appellant guilty of alleged negligent loss of property and

dismissing her despite clear oral evidence from respondent’s key witness confirming that the ticket books were not in the possession of the appellant when they were lost.

The respondent grossly erred and misdirected itself at law in the application of principles derived from the concept of negligent which led to the loss of property. In the result appellant prayed that the appeal be granted, that the decision of the Chief Executive Officer dated 12 October 2023 be set aside and substituted with a decision finding appellant not guilty for lack of evidence and that she be reinstated to her former position with salary and benefits or that she be paid damages if reinstatement is no longer tenable in an agreed sum or sum to be set by the court on application by either party.

In response to the appeal the respondent maintained that:-

Ground 1

The appellant’s contention is that when the ticket book got lost, it was not in her possession. However, negligence involves a reckless disregard for the potential consequences of one’s actions or a wilful indifference to one’s duties. At the core of appellant’s contract of employment is the duty to safeguard the receipts books. It is common cause that inspectors only inspect the receipt book and leave it in the care of the conductor of the bus. In any event appellant had a duty to collect the receipt book from the inspectors. The appellant is the primary custodian of the receipt book to which she owed a duty of care. The appellant’s day to day duties involved the safekeeping of the ticket book before and after inspection because ticket books are the point of reference for any job done. The appellant is misconceived as the misconduct is directly linked to the core of her employment and amounts to negligence. The fatality of her omission while present in the bus as the inspector was gross and on is trite and leaves her bare at law. The appellant negligently lost the receipt book for reasons best known to her. This ground must therefore fall away.

Ground 2

The appellant averred that there was not enough evidence to find her guilty of the offence. However burden of proof during disciplinary proceedings is on a balance of probabilities. A clear reading of the minutes shows that the appellant did not care to enquire about the book after the inspection. The fact that the witness testified that the books were left on the dashboard is irrelevant. The appellant in her testimony did not dispute that she is the custodian of her ticket book and the fact that she did not do anything to safeguard the ticket book from getting lost shows negligence on his part. The appellant further indicated in her

testimony that she never reported the incident to any superior. By her admission she indicated that there was no effort on her part to safeguard her tools of trade a glaring example of negligence. The appellant in her testimony did not dispute the fact that she should have reasonably foreseen the potential risk that could result from her failure to follow up on the ticket book. Her reckless disregard for the potential consequences was an act of negligence and on a balance of probabilities the appellant was indeed guilty. Moreoever the appellant was sitting on a written warning relating to gross negligence. It serves as a manifestation of her attitude towards her contract of employment. This is what the respondent considered in the exercise of its discretion in imposing an appropriate penalty. Any employer is bound to view previous connections for misconduct in a negative light and come to the conclusion that the acts of misconduct go to the root of the employment contract. Accordingly this ground of appeal cannot stand as a result of the above submissions.

Ground 3

The appellant’s 3rd ground of appeal is not valid for the following reasons. An omission which goes to the root of one’s contract of employment satisfies the principles of negligence. The appellant‘s failure to keep a proper look out under the circumstance and failure to stop or act reasonably when the inspection was completed is the reason why she was charged with negligent loss of property and found guilty.

In the result the respondent prayed that the appeal be dismissed with costs.

The respondent in its opposition stated in limine that the appellant’s prayer was defective taking into account that her contract was a 3 months contract to the extent that as at the time of the determination of her appeal the contract would have expired thus if the court proceeded with the matter it would end up handing down a brutum fulmen decision on account of the expiry of the contract. It therefore prayed that the matter be struck off the roll on this account.

On the general merits of the appeal the respondent stated that there were no valid appeal grounds to the extent that the appeal had to be struck off. It reasoned further that the purported appeal grounds of appeal have no legal basis and must not be allowed to stand.

For completeness of record it need be observed that in its oral address the respondent did persist with the point in limine vis the contract. When it was asked to tender the contract which was in sync with the position that it relied on it stated that it was relying on the same contract which appellant had tendered to the court and when she had stated that such had

mutated to a contract without limit of time given the provisions of the respondent’s CBA. Faced with that scenario it became apparent that respondent did not have a serious point that it was pursuing vis the contract. The point was accordingly dismissed by the court.

As regards the validity of the grounds of appeal the respondent did not pursue that in its oral address suggesting that it did not want to pursue same. In the result the court concluded that respondent was therefore abandoning the challenges on the nature of the appeal grounds and that put the issue to rest.

Turning to the merits of the appeal grounds the court needs to start by restating that the law is clear on the appellate function of the Labour Court. See Nyahondo v Hokonya 1997

(2) ZLR 457. A reading of all 3 appeal grounds speak to a single critical issue falling for determination being that. Was the conclusion arrived at by the respondent’s disciplinary committee and appeals committee the kind of decision where the court can say there was gross unreasonableness in the exercise of discretion by the trier of fact. It is therefore the court’s view that the grounds can to that extent be dealt with cumulatively as a single ground seeking to test whether the guilty verdict and dismissal penalty were indeed supportable at law albeit within the threshold of the standard of proof in labour matters See ZESA v Dera 1998 (1) ZLR 500(S). Applying the law to the facts of the matter at hand it need be observed that the record of proceedings is replete with evidence that the books were not handed over to the appellant after the inspectors were done with their checks. In fact the testimony of the inspector is recorded to the effect that they left the books on the bus dash board and did not hand over the books to the conductor. A number of issues revolve around these admitted facts. There is no evidence on record that it was standard procedure that after checking the books the supervisor had to put the same on the dashboard. It is granted that the books were indeed the tools of trade of the conductor and they had to be guarded jealously. The question that comes next is what amount of guarding was expected from the conductor when his tools of trade were in the “safe” hands of the supervisor. The court is of the view that the employer did not envisage a situation where the conductor had to wrestle the books from the Supervisor’s hands. It is clear that the books were not in the hands of ordinary people divorced from the employer’s operations. Without evidence of the standard of placing the books on the dashboard for conductor having to later collect it would be absurd to reason that she fell foul of her duty when she took it that the books were safe in her supervisor’s hands and when he expected that the supervisor would hand the same books to him.

As the conductor clearly reasons that she could not hover over the inspectors assessment of the said books as if she had something to hide. She would equally not be expected to accept that an inspector conducting her duty properly would dump the books on the dashboard in circumstances where the witnesses accept that a number of people were exiting the bus thus leaving room for any ill minded person to tamper with the same. It is the court’s view that an objective assessment of these facts leads to one unescapable conclusion that the conductor rightly trusted her supervisor’s conduct with the books in question. She thus had no reason to fret and try to decipher where the books could be yet she knew pretty well that she had handed the same to the conductor. It is clear that whilst it was the conductor’s duty to safeguard the books she did nothing to fall foul of that expectation when she concluded that the books were safe in the inspector’s hands. She can thus not be classified to have been negligent at all vis the books in question.

The employer states that if the conductor was acting properly he would have made a report of the loss of the books to her supervisors. The employer says the non reporting meant that the conductor acted casually towards her duty of safeguarding the ticket books. It is however recorded that the conductor told one Chirisa about the books. It need be noted however that even if conductor had not told Chirisa there still would not have been anything remiss about that silence since these books had not been left in the hands of strangers. Nothing therefore turns on the issue of the report to satisfy the negligence complained about.

The employer also stated that the guilty verdict was also birthed by the conductor’s previous blemished record. When the employer was quizzed about that record it failed to produce the same. In fact it became evident from the CEOs comments that it appeared he dealt with the appeal at a time when he was dealing also with a completely different matter where he spoke about intimidation etc which facts were not at all at play in the matter at hand. The conclusion drawn therefore is that the verdict of guilty was birthed by extraneous factors. The law is clear that where such happens it is a clear abuse of discretion and any decision made based on extraneous consideration which are not proper should be vacated See Hama v NRZ 1996(1) ZLR 664.

Stemming from the above analysis it is clear that the guilt of the conductor and the attendant .penalty meted out were not in sync with the balance of probabilities test ZESA v Dera (supra). It is clear that the conclusion arrived at by the respondent were outrageous in their defiance of logic and should thus not stand the day See Hama v NRZ (Supra).

It is granted that penalty is in the discretion of the employer See Nyawasha v Circle Cement SC-10-03. In the case at hand there was no need to even try to assess the suitability of the penalty which was premised on an irregular guilty verdict. To that extent all talk about a serious view about the infraction is not well founded on the facts of the case at hand. In the ultimate the court is satisfied that the appeal is merited in its entirety. It should therefore succeed.

IT IS ORDERED THAT

Appeal being merited in its entirety it be and hereby succeeds. The decision of the Chief Executive Officer upholding the guilty verdict and dismissal penalty be and is hereby set aside. Appellant is reinstated to her job without loss of salary and benefits from date of her dismissal. If reinstatement is no longer tenable appellant is to be paid damages in an agreed sum between the parties or to be set by the court on application by either party. Respondent to bear the wasted costs of suit