Fulton Mujeyi v Mutare Bottling Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/MC/13/14
HELD AT MUTARE 3RD FEBRURARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/MC/13/14

HELD AT MUTARE 3RD FEBRURARY 2014		CASE NO LC/MC/48/13

& 14TH MARCH 2014

In the matter between:-

FULTON MUJEYI						Appellant

And

MUTARE BOTTLING COMPANY (PVT) LTD		Respondent

Before The Honourable E Muchawa, Judge

For Appellant		Mr Ndlovu

For Respondent		Mr D Tandiri (Legal Practitioner)

MUCHAWA, J:

This is an appeal against a decision of the Appeals Committee of the

21stJune 2013.  Until the 10 May 2013 Appellant was employed by Respondent as a plant maintenance manager.  He was charged of breach of the Company’s Code of Conduct Annexure II section 8.3 which reads “Negligence – failure to exercise proper care and regard to the manner of discharging of duty to the extent that tasks have to be repeated or equipment or persons are at risk of damage or injury.”

The allegation was that on 25 April 2013, Appellant had worked on line 3 carbo –cooler to rectify the problem of low temperatures.  On completion of the repairs, it was alleged, he did not fully close the carbo – tank drain valve.  This valve had been opened to enable continuous water run during the process of settling/adjusting temperatures.  Production was said to have commenced around 2200 hours on that line.  It was further alleged that around 0200 hours on 26 April 2013 when the shift returned from break, the carbo – cooler was discovered to have emptied.  Investigations led to the discovery of the partially closed carbo –cooler.

It was also alleged that the incident resulted in loss of 1869 cases of product costing the company US$17 942.40 in revenue.

Appellant was found guilty and dismissed by the Disciplinary Committee.  An Appeals Committee subsequently upheld the decision of the Disciplinary Committee.  It is that decision Appellant is appealing to this Court.

The grounds of appeal are stated as;

The Appeals Committee erred and misdirected itself when it confirmed the Appellant’s dismissal.

The Appeals Committee erred and misdirected itself when it ruled that the initial hearing panel was properly constituted.  It was clear from the record of proceedings that Mr Marichana had represented management.  No one therefore represented the Human Resources Department.  This was contrary to the dictates of the Code of Conduct.

The Appeals Committee further erred and misdirected itself on law when it ruled that there was evidence that the Appellant had committed the offence.  The evidence suggested that the line was not on continuous run.  Further evidence suggested that at the time that Appellant worked on the valve he had used water.  There was no evidence that he had half closed the valve.  If anything the suggestion that the supervisors had also tampered with the valve could not be ruled out.  It was the supervisors who had been negligent.

The Appeals Committee further erred and misdirected itself when it accepted the evidence or value of finished product as a base for prejudice or loss. Only syrup was loss (sic) and its definitely not a finished product.

The sentence that was imposed was manifestly excessive and harsh.  There were other supervisors who ought to have done their work and the loss would have been mitigated.

I deal with the grounds of appeal in turn below in respect of the emerging issues.

Whether or not the Disciplinary Committee was properly constituted

It is Appellant’s argument that the registered Code of Conduct  clearly spelt out the composition of the committee.  One member should represent the personnel department in terms of clause 10.3.  The minutes of the hearing reflect that a Mr Marichama from personnel department was a member of the committee.  He is reflected as representing management.  This Appellant considers to be a flagrant disobedience and misapplication of the registered Code of Conduct.  It is further argued that even though Appellant confirmed his satisfaction with the panel at the hearing, he did not give an opinion on the capacities of the panellists as later reflected in the minutes. Appellant argued that the hearing was therefore a nullity.

Respondent on the other hand argues that Appellant should have objected to the composition of the Committee at the hearing on the 9 May 2013.  I was referred to the case of Herbert Manyashu & Anor v Superior Holdings (Pvt) Ltd LC/H/29/2009 which quotes Ramani v NSSA SC 38/03 with approval as follows:

“if indeed the Applicant had any objection to the composition of the Appeals

Committee, the objection had to be made at the hearing and recorded.  They did not object at the hearing.  They cannot object at this late stage.”

I particularly note that Appellant has not shown any prejudice suffered.  The Disciplinary Committee in question was composed of equal numbers of representatives of the employer and the employee.  The relevant Code of Conduct does not state that the representative of the personnel department will act as an advisor.

I therefore find that the Appellant was not prejudiced by the composition of the Disciplinary Committee and that the committee was properly constituted in terms of the Code of Conduct.

Whether the Appellant was properly found guilty

The Appellant avers that Respondent failed to prove its case.  It is alleged that that there was evidence that the line was not on a continuous run and certainly before its start up, operating procedures had to be carried out.  One of such procedures was to check the valve.  Appellant argues that there is a great possibility that someone else worked on the valve after Appellant and notes that the hearing panel suppressed the evidence in respect to this and refused to debate the issue.  Appellant states that he was therefore punished for the possible negligence of others.

On the other hand, Respondent makes the case that it is common cause that Appellant worked on line 3 carbon cooler around 8 pm to rectify the problem of low temperature and this involved opening the drain valve in question to enable water to run.  It is alleged that after completing the repairs the Appellant did not fully close the carbon tank drain valve nor did he inspect line 3.  Further he is alleged not to have advised the production supervisors that he had worked on the line and that such work had entailed opening the drain valve in question.  The result is said to be the loss of 1869 cases of syrup worth US$17 942.40. Respondent therefore alleges that the Appellant was correctly found guilty of negligence in terms of the Code.

Clause 8.3 of Annexure II of the Code defines negligence as failure to exercise proper care and regard to the manner of discharging duty to the extent that tasks have to be repeated or equipment or persons are at risk of damage or injury.

I wish to commend Respondent’s lawyers for their	 diligence in referring me to various authorities and case law on the subject of negligence.  I was disappointed however by the lack of preparation by Appellant’s lawyer who has not done his client a service by failing to direct me to any relevant authorities.

Munyaradzi Gwisai in Labour and Employment Law in Zimbabwe p 107 defines negligence as referring to a situation whereby the employee is aware of his duties and is capable of performing them but for no good reason she/he does not or does them in an incorrect way because of lack of application or concentration.

In casu Appellant is a qualified and experienced artisan who was expected to exercise reasonable skill, diligence and care in the performance of his duties.

Appellant does not deny in his report that he had worked on the line in question and had opened the valve.

A perusal of the record does not support Respondent’s submission that Appellant had admitted to having left the valve partially open to Mr Saurombe in the presence of production supervisors.  (See Appellant’s report and minutes of the hearing on p 23 of the record)

The negligence hinges on what had then happened after the repairs.  Did Respondent prove, on a balance of probabilities, that Appellant incorrectly closed the valve leading to the loss?

Respondent submitted that Appellant did not cross examine Mr Saurombe who gave evidence adverse to him.  This assertion is however not supported by the minutes of the hearing.  Appellant’s representative put questions regarding whether the machine was on a continuous run and put it to Mr Saurombe that the supervisors were supposed to do a start up procedure.  The worker representative also asked on the identify of the people who were present when Appellant allegedly admitted that he had left the valve open.  Though it is alleged he had made the admission in the presence of production supervisors, I find it unsettling that in his evidence, one Mr Maringe (a Supervisor) did not say Appellant had admitted to having left the valve partially open.

I agree with Appellant that the chairman and the Disciplinary Committee suppressed the evidence on this.  In particular on page 23 of the record when Appellant asked the supervisor Maringe why they had not done start up procedures at 10.30 pm when the line had stopped at 6.00 pm the chairperson said that if there were omissions on the part of the supervisors, it was not the cause of the hearing.  Further in the hearing when Appellant’s representative asked Mr Saurombe how he could have called the 10.30 pm process a continuous machine run when the carbo – cooler was off thus requiring a start up procedure, the chairman once again diverted the issue by asking if the committee could go to the carbo cooler to see the drain valve.

The submissions made and the evidence before me leaves me with the distinct impression that the Disciplinary Committee needed to explore the question of the responsibilities of the production supervisors in checking the line and opening and closing the valve before concluding that Appellant had been negligent as alleged. Without that exploration having happened and with appellant having refuted the claim that he had left the valve partially open, the onus shifted to Respondent to show that the production supervisors had checked the line.  That was not done fully.

A deciding finding was however that Appellant had not made a hand over to the supervisors on completion of repairs.  If this had been done, it would have avoided the need to establish whether or not the line was on continuous run or not and whether the supervisors had tampered with the valve.

In the circumstances Appellant was properly found guilty of having been negligent, bearing in mind that the burden of proof is on a balance of probabilities.

Propriety of the sentence

I note that the Respondent’s Code of Conduct provides for a penalty of dismissal in respect of the charge Appellant was facing. Nothing really turns on the formular used to compute the prejudice.  I was referred to the cases of Toyota Zimbabwe v Posi S 55-07 and Murawo v Grain Marketing Board 2009 (1) ZLR 304 and find that there is no basis to interfere with the penalty of dismissal as the employer has a right to dismiss where the misconduct goes to the root of the employer and employee relationship.  The Respondent took the view that the aggravating factors for outweighed the mitigatory factors.  Appellant has not made a case for the interference of same.

In the circumstances I find that the appeal is devoid of merit.

It is therefore ordered that the appeal be and is hereby dismissed with costs.

Messrs Gonese & Ndlovu, Appellant’s Legal Practitioners

Tandiri Law Chambers, Respondent’s Legal Practitioners