Hilton Changaza v Strauss Logistics Zimbabwe (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/711/14
HARARE ON 17th JULY, 2014
CASE NO. LC/H/294/14
And 24th OCTOBER, 2014
JUDGMENT NO. LC/H/711/14
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IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/711/14

HARARE ON 17th JULY, 2014				     CASE NO. LC/H/294/14

And 24th OCTOBER, 2014

In the matter between

HILTON CHANGAZA					–	Appellant

And

STRAUSS LOGISTICS ZIMBABWE (PVT) LTD.	–	Respondent

Before   The Honourable Manyangadze, J.

For the Appellant	: Mr. T.J.S. Chakabva (Legal Practitioner)

For the Respondent	: Mr T. Machigere (Human Resources Manager)

MANYANGADZE  J.

This is an appeal against the determination of the Respondent’s General Manager. The General Manager upheld the Respondent’s decision that the Appellant was guilty of misconduct in terms of the Transport Industry Code of Conduct. The General Manager then imposed a penalty of dismissal.

The facts of the matter, which are largely common cause, are that the Appellant was employed by the Respondent as an International Truck Driver. On 20th January 2014 he loaded 38 242 litres of diesel at Beira in Mozambique. On 30th January 2014, he offloaded 37 423 litres of diesel in the Democratic Republic of Congo (DRC). The difference of 819 litres of diesel was unaccounted for.

The Appellant was charged with gross negligence in terms of Section 2.3.1. of the National Employment Council for the Transport Operating Industry Code of Conduct, Statutory Instrument 67 of 2012 (the Code). According to the charge sheet dated 24th February 2014, the basis of the charge was that;

“On the 30th of January 2014, you are alleged to have incurred a delivery loss of eight hundred and nineteen (819) litres of diesel. This is tantamount to gross negligence.”

On 28th February 2014, the Disciplinary Committee found him guilty as charged. However, it was deadlocked on penalty, and referred the matter to the General Manager. On 5th March 2014, the General Manager upheld the guilty verdict, and went on to impose a penalty of dismissal. Having exhausted the domestic remedies available, the Appellant then appealed to this Court.

Appellant’s grounds of appeal are stated as follows:-

“AD GUILTY VERDICT

The respondent erred in finding the appellant guilty of gross negligence in circumstances where there was no specification on the standard a reasonable man would have done to avert the loss.

The respondent erred in finding the appellant guilty of gross negligence where there was no nexus between the alleged delivery loss and the accused’s conduct.

PENALTY

The respondent grossly misdirected itself in imposing dismissal without considering a lesser penalty that would have met the justice of the case by being correctional and educational, in view of the appellant’s personal circumstances as submitted in mitigation.”

In this case, one is basically looking at the Appellant’s conduct, and the loss incurred. It was contended, on behalf of the Appellant, that he should not have been held liable for the loss. The argument was that there was no wrongful conduct that he engaged in, which caused loss of the 819 litres of diesel. It was further contended that if even some wrongful conduct was established, such conduct was not shown to be sufficiently linked to the loss complained of.

Mr T. Chakabva, on behalf of the Appellant, averred that the Disciplinary Committee grossly erred in finding the Appellant guilty, without establishing both factual and legal causation. The nexus between the Appellant’s conduct and the loss was not sufficiently probed. Reference was made to the case of International Shipping Company (Pty) Ltd. vs Bentley [1970] ALL SA 498 (A), where the two rung enquiry of factual and legal causation was set out.

The Appellant elaborated on this approach in its Heads of Argument, paragraph 7. He expressed the point this way:

“(a)	“but for” the appellant’s conduct, the loss of 819 litres would not have occurred (Factual causation), and

(b)	The second enquiry that the appellant’s “wrongful acts” are linked sufficiently close or directly to the loss of 819 litres for legal liability to ensue (legal causation).”

There being no proven link or nexus between Appellant’s conduct and the loss, a finding of guilty was “grossly unconscionable”, averred the Appellant.

On the other hand, the Respondent contended that Appellant’s conduct constituted gross negligence, in terms of its Code of Conduct. The Respondent emphasized the definition in paragraph 4 of its Heads of Argument:

“An employee is grossly negligent if there is obvious/aggravated/excessive proven negligence.”

The Respondent elaborated the point in its Heads of Argument as;

“4. 	In others word, an employee is gross (sic) negligent if he does not take reasonable care in the performance of his duties to avoid acts or omissions that he or she can reasonably foresee would (sic) likely to cause major loss or shortage.

5.	In casu, it is respectfully submitted that the questions that ought to be asked are as follows;

Did the Appellant failed (sic) to take reasonable care in the performance of his duties?

Was it reasonably foreseeable that problems associated with failure to get hold of the Operations team would arise?” (underlining added)

The thrust of Respondent’s contention was that if the Appellant faced any challenges, he should have communicated these to his superiors. This communication was important, in that it would have raised alarm and the necessary remedial action taken. Instead of raising any alarm, the Appellant proceeded on his trip as if everything was in order, and went on to sign the delivery documents. The Respondent was alerted to the loss by a complaint from the customer.

Under the circumstances, it is necessary to look at the conduct of the Appellant during the trip in question.

Minutes of the Disciplinary Committee hearing show that the Appellant indeed faced some challenges, especially at the loading point in Beira.

To begin with, he could not load at the bay where he usually loaded. He was told it was meant for Dharwizi trucks, and was asked to load from another bay. The Appellant observed that at times the meters would stop working during loading. He claimed that he brought this issue to the attention of the authorities responsible for loading, but they simply told him everything was alright.

Further to that, the dip-sticks were not used correctly. He complained to the supervisor, who did nothing about it. The truck was then sealed after loading.

This is the explanation that came from the Appellant, as summarized in the minutes of the hearing (pages 14 to 15 of the record). This explanation shows that there were serious anomalies at the loading bay, which included malfunctioning meters.

The Appellant said that he tried to call Mr B. Ncube at the Harare Depot, but there was no response. There is however no evidence of this attempt.

What makes Appellant’s case particularly problematic for him is that from Beira, he passed through the Harare depot, on his way to the Democratic Republic of Congo. Respondent submitted that Appellant had to pass through this depot, for refueling of his truck, and collection of toll fees for the Democratic Republic of Congo trip. It is significant this was not controverted.

What is crucial about the transit through the Harare depot is that it afforded the Appellant an excellent opportunity to communicate the challenges he faced at Beira. What he failed to achieve electronically, he could now do in person. No report was done. He collected his toll fess and proceeded to the Democratic Republic of Congo as if all was normal.

As already pointed out, the anomalies Appellant allegedly observed at Beira were of a serious nature. Infact they made him attempt, without success, to call Mr B. Ncube. It therefore should have been uppermost in Appellant’s mind, as he approached the Harare depot, that the loading process was flawed and his superiors should be alerted.

It seems to me, a reasonable driver, in the position of the Appellant, would have foreseen the possibility of discrepancies arising, given what he observed at Beira. According to him, he even complained but was ignored.

From the Respondent’s Heads of Argument, it appears this communication was crucial, as it enabled the operations team at the depot to take remedial steps through contacting the relevant offices. This point is clearly elaborated on pages 1 to 2 of Respondent’s Heads of Argument, wherein it is stated;

“….. he or she is supposed to raise alarm whilst at the loading point or offloading point to the Operations team at the depot to take appropriate action.  The Operations team would then contact the relevant offices to address the issue instantly. The driver is also expected to brief the supervisor at the depot to affirm the conversation held. Every truck that loads in Beira will pass through the depot for the purposes of collecting toll fees, fuelling and briefing the Driver controllers on the trip Harare-Beira-Harare before proceeding to DRC. Failing to raise alarm would be deemed that everything went well and the expectations will be to have no shortages from a respective trip. If the driver completes his trip and only to show up with proof of delivery notes with shortages without any queries from the trip, it would be regarded as substandard performance and depending on the quantity lost, a driver would be charged of misconduct under substandard performance. The quantity lost would determine the seriousness of the charge.”

The Appellant’s actions, in the circumstances, fell far short of what the employer expected of him.  The employer adjudged his substandard performance to be of a sufficiently serious degree to warrant the misconduct charges preferred against him. The seriousness with which misconduct is viewed is, generally, the prerogative of the employer. It is the company’s standard of performance that would have been breathed. The Courts are normally loathe to interfere, unless it is shown that there was gross unreasonableness, caprice or malice. In County Fair Foods (Pvt) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) it was stated:

“It lies in the first place within the province of the employer to set the standard of conduct to be observed by its employees and to determine the situation with which non-compliance will be visited, interference therewith is only … in the case of unreasonableness and unfairness.”

In the instant case, the Respondent charged the Appellant in terms of its Code of Conduct, wherein the values and standards of work performance are prescribed, and sanctions for non-compliance provided for. In terms of the Code of Conduct, Appellant’s performance was assessed to be grossly inadequate. It attracted a charge of gross  negligence, as defined in the Code of Conduct.

In Circle Tracking vs Mika Mahachi SC 4/07, GARWE J.A. emphasized the need to give effect to the spirit and purpose of the Code of Conduct. The learned Judge stated:

“Indeed some decisions of this court have stressed that a Code of Conduct should be interpreted in a way as to give effect to the spirit of the Code of Conduct. It is not the kind of document that should be construed strictly and each word given a legal meaning.”

More or less the same sentiments were expressed in Murawo vs GMB 2009 (1) ZLR 304 (S), where it was inter alia, stated;

“In general such Codes (Codes of Conduct) are not drafted with the same expertise and precision required for the drafting of statutes. They are almost invariably drafted by laymen with little or no knowledge of law.”

The basis on which the Respondent found the Appellant’s conduct reprehensible has already been looked at.  I find nothing unreasonable, capricious or unconscionable in the manner in which  the Appellant was charged, tried and convicted of misconduct.

On the question of penalty, it is again the employer’s discretion what sanction to impose for non-compliance with its standards of performance. If the conduct complained of was viewed seriously, the Court may not substitute a penalty of dismissal with, say, a written warning, merely because it holds a different view. There has to be a clear and serious misdirection to warrant interference.

In this case, the disciplinary authority, in the person of the General Manager who imposed the penalty of dismissal, took a very dim view of Appellant’s conduct. In his determination, he remarked;

“1.	……………………

2.	It is important to note that the charge facing the respondent is of serious magnitude and in accordance with the provisions of the Code (S.I. 67 of 2012) the misconduct is provided for under dismissible offences.

In view of the foregoing, the respondent committed a serious misconduct in which if allowed to replicate, Strauss Logistics Zimbabwe will close down in a few months to come. The submission of extenuating circumstances by the respondent does not make any weight in relation to the case at hand.”

This view is reinforced in the Heads of Argument paragraph 19.

“19.	However in this case, the gravity of the offence was high to warrant a lesser penalty and dismissal was the appropriate penalty from any reasonable employer who intends to have continuity in her operations realizing a remarkable profit and being able to pay at least employee salaries on a monthly basis. Given a scenario where the employer has 53 trucks like in this case, if each driver is allowed to get away with more than $1000.00 per trip per truck, what would be the future of the employer in 2 years given that each truck can do an average of two trips per month? Simple arithmetic would show us that the company would likely lose US$106 000.00 per month if the offence of the Appellant’s magnitude can be ignored.”

The disciplinary authority exercised its discretion, and found dismissal appropriate. It had the interests of its business and reputation in mind when it assessed the matter. There is, in my view, no basis on which to interfere with that assessment. In Innscor Africa Ltd vs Letron Chimoto SC 6/12 MALABA DCJ stated;

“A principle has now been firmly established to the effect an appellate court should not interfere with an exercise of discretion by a lower court or tribunal unless there has been a clear misdirection on the part of the lower court, In this case the Labour Court did not even appreciate that it was dealing with a case of an exercise of discretion by the arbitrator. The Labour Court merely substituted its own discretion for that of the arbitrator, without finding any recognizable misdirection on the part of the arbitrator.”

There is, in my view, nothing in this matter to justify a departure from this approach. The appeal cannot therefore succeed both on the verdict and the penalty.

In the result, it is ordered that;

The appeal be and is hereby dismissed in its entirety.

The determination of the General Manager dated 5th March 2014 be and is hereby upheld.

Each party bears its own costs.

Kwenda and Associates – Appellant’s legal practitioners