Langson Nyamucherera v Kukura Kurerwa Bus Company

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGEMENT NO. LC/H/650/14
HELD IN HARARE, 24th SEPTEMBER, 2014
CASE NO. LC/H/850/13
AND 26th SEPTEMBER, 2014
JUDGEMENT NO. LC/H/650/14
---------




IN THE LABOUR COURT OF ZIMBABWE 	         JUDGEMENT NO. LC/H/650/14

HELD IN HARARE, 24th SEPTEMBER, 2014             	            CASE NO. LC/H/850/13

AND 26th SEPTEMBER, 2014

In the matter between

LANGSON NYAMUCHERERA			Appellant

And

KUKURA KURERWA BUS COMPANY		Respondent

Before The Honourable B.T. Chivizhe:	Judge

For Appellant    :	Mr B. Sasvikiro (T & GWU)

For Respondents:	Mr I. Dandara (Human Resources Manager)

CHIVIZHE J.,

The Appellant was employed by the Respondent as an International Truck Driver in 1991. On the 8th of August 2013 Appellant in the course of duty drove from Mimosa to Boksburg. He had been allocated 1600 litres of diesel for the journey. The truck however ran out of fuel 60km before the destination resulting in an additional 200 litres being sent to Appellant in order to enable him to reach Boksburg. It is common cause the Appellant was travelling in a convoy with other trucks belonging to the Respondent. Upon his return to Harare the Appellant was notified to attend a disciplinary hearing to answer to an allegation of theft of the 200 litres of diesel. The Appellant was consequently arraigned before a Disciplinary Committee on the 5th of August, 2013. The Committee at the end of the hearing returned a guilty verdict and consequently imposed a penalty of dismissal from employment. The Appellant appealed unsuccessfully to the Appeal Authority under the Code. Still dissatisfied the Appellant noted the present appeal before this Court.

The appeal has been noted on the following grounds of appeal:-

No investigations as in terms of the Code of Conduct for Transport Industry were conducted by the Respondent on my matter.

There was no proof of “theft” charge levelled against me, as in terms of the Code of Conduct.

The vehicle had a mechanical fault and the Appellant reported this to his superior Onassis by way of writing in used sheets.

The complainant admitted in the hearing that he could have levelled fake allegation to the Appellant but Respondent went on to terminate the Appellant’s employment contract, despite of complaint’s admission.

The Appellant’s vehicle was in the convoy, and had safers which were intactly fixed on the tanks that purely disallowed the entry of any tiny object, let alone the horse pipe, your Honour! Also two trucks which were in the same convoy ran out of fuel before they reached Boksburg and nothing was done to its drivers.

The decision to dismiss by the Disciplinary Committee was beyond unreasonable doubt; since no investigations were conducted as a result there was lack of prof as in terms of the Code of Conduct which says “Theft should be proven”.

The Respondent violated the Code of Conduct by withholding the documents of the Appellant’s hearing proceedings for more than 5 working days as prescribed in the Code.

The Appellant in his first ground of appeal contends that the Respondent failed to carry out investigations as required under the relevant Code of Conduct i.e. Statutory Instrument 67 of 2012. The Respondent in counter submissions indicated that thorough investigations had been carried out before levelling charges against the Appellant. The particular vehicle Appellant was driving had a diesel capacity of 1600 litres. The Appellant had driven it on prior occasions with the same load weight and same diesel quantity. He had managed to reach the destination on the same amount of fuel. On this particular occasion he had failed to reach the destination. He could not explain the fuel deficit. In the absence of any cogent explanation it was the employer’s view that he had stolen the 200 litres of diesel. I am satisfied that on the basis of Respondent’s submission an investigation was carried out and the evidence was, on a balance of probabilities sufficient for a conviction on the charge.

The Appellant also submitted under the relevant Code of Conduct the offence of ‘theft’ requires proof on the part of the employer. The Code of Conduct on Annexure 2, page 472 (5) 5.1 outlines the offence as “proven case of theft”. The Appellant in his submission appears to suggest that the burden of proof on the employer in the circumstances should be beyond a reasonable doubt. That approach is clearly wrong. Disciplinary proceedings being essentially civil matters the burden of proof is always on a balance of probabilities see ZESA v Dera 1998 (1) ZLR 500 (S). I am satisfied that in this case the Respondent did establish the charge of theft on a balance of probabilities.

The Appellant also suggests that the truck had a mechanical fault which may have resulted in the fuel shortage. He also claims to have reported the fault to his immediate supervisor Onassis whilst still in Boksburg. The Respondent in counter submitted that the report was only made upon Appellant’s return to Harare. The record of proceedings clearly shows that the issue of Appellant’s report of the purported mechanical fault was discussed during the disciplinary hearing. The employer representative Gwata disputed that a report was made whilst in Boksburg. The Disciplinary Committee’s finding was that the same truck having been allocated to a different driver with similar load and the same amount of diesel had reached the same destination without additional fuel. On that basis the Disciplinary Committee found the Appellant guilty on the charges. The Disciplinary Committee in my view was in the circumstances correct in dismissing Appellant’s assertion in this regard.

The last point raised by the Appellant is that the Respondent, contrary to the provisions in Section 12B (4) of the Act, failed to weigh mitigatory factors against the aggravatory factors. The Appellant having joined in 1991 had a long service and a clean record. The Respondent’s position was after weighing the mitigatory factors against the aggravatory factors the employer’s view was the aggravatory factors of the case clearly outweighed the mitigatory factors. The charge being a very serious offence the employer justifiably imposed a dismissal penalty.

The offence of theft involving as it does a material breach of trust goes to the root of any employment contract. The employer having established the charge on a balance of probabilities was, in the exercise of its discretion, entitled to return a penalty of dismissal from employment. That discretion this Court cannot lightly interfere with.

In the circumstances it is hereby ordered as follows;

The appeal be and is hereby dismissed with no order as to costs.