Moses Sabao v Sparrow Hauliers t/a J.J. Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/173/13
HELD AT HARARE ON 15 MAY 2013
CASE NO.
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IN THE LABOUR COURT OF ZIMABABWE		JUDGMENT NO. LC/H/173/13

HELD AT HARARE ON 15 MAY 2013			CASE NO. LC/H/196/12

In the matter between:

MOSES SABAO						-	Appellant

And

SPORROW HAULIERS T/A J.J. TRANSPORT		-	Respondent

Before the Honourable President, E.F. Ndewere

For Appellant			-		Mr C. Chigwada (Trade Unionist)

For Respondent			-		Mr P. Mabundu (Legal Practitioner)

NDEWERE E.F.:

Appellant was employed as a Truck driver by J and J transport.  On 21 January, 2012, he was instructed to leave the depot at 6:00a.m to proceed with a copper convoy from Harare to Forbes.  The Appellant then left the depot with his loaded truck and proceeded to Chitungwiza.  Another driver who was supposed to form the convoy with him then rang the Operations manager, Mr Chipenzi and told him that he was alone at the depot and could not see the Appellant, whom he was supposed to form a convoy with.  Other arrangements had to be made for that driver.  A few moments later, Management was informed that the Appellant had been seen driving along Seke road going towards Chitungwiza.  He was called back to the depot.

Appellant admitted deviating from the convoy and driving the truck to Chitungwiza and back, without authority, contrary to the instructions he had been given.  He said he did that because he needed clothes yet standing instructions were that if a driver forgot anything which he needed on a trip he reports to Operations who will assist with transport to go and collect the things.

The Disciplinary Committee found the Appellant guilty and he was dismissed from employment with effect from 29 February, 2012 the day of the hearing.  The Appellant filed an appeal on 26 March, 2012.  The grounds of appeal were as follows:

The Appellant invited his representatives for the hearing, from the Transport and General Workers Union.  Who were allowed to enter the premises gates, but were informed that they could not participate in the hearing proceedings.  In spite of the provisions at law to represent an alleged offender in a hearing at company level.

Failure to allow, Appellant representative access to the hearing, ultimately mean the audi alterm patem rule was not observed, yet when Appellant was called in after the T.G.W.U representative had left, he kept insisting that he wanted his refused access representatives present, since they had all his instructions.  Something which fall on deaf ears on the part of the Respondent

The Respondent in his response of a letter of appeal date 2nd March 2012, brings in new charges from the ones the Disciplinary committee sought or purported to discuss: page 2 paragraph 7 “The charges, which were clearly outlined in the letter dated 23 February 2012 are for (I) failing to drive a copper truck in a convoy”.  (See letter of 23/02/12).

That there was and is no prejudice which the company suffered, since the pick-up point, was the same route to the intended destination, had the Respondent allowed Appellant to proceed.

The traditional standing is that from Harare to Beira Mozambique, there was and is no requirement and or instruction on which route you must utilize neither is there an instruction to travel in a Copper Convoy.  This is so because time of dispatch from the depot (workshop) vary.  Some trucks will have minor problems and others having major problems.

The standing instruction to travel in a copper convoy is from the loading point (Ndola) Zambia to Harare.

Grounds of appeal (a) and (b) refer to the company’s refusal to allow representatives of the Transport and General Workers’ Union who were not employees of the company to represent the Appellant at the hearing.  A look into the Code of Conduct for the Transport Operating Industry, Statutory Instrument 94 of 1995 which was applicable at the time of the hearing shows that the exclusion of the Union members were in line with the Code of Conduct.  Section 7 (c) of the above code provided that an employee had “a right to be represented by a member of the Workers’ Committee or a member of the Trade Union who is employed at the workplace”.  The Union representatives whom the Appellant had invited to represent him were not “employed at the workplace” so they were properly excluded from the hearing.

Ground of Appeal (c) alleges that a letter dated 2 March, 2012 the termination advice brings in new charges.  This allegation has no basis at all and should be dismissed.  The Appellant was charged with

Wilful disobedience of a lawful order given by the employer

Abuse of company vehicle or alternatively, misuse of company property that is for personal gain.

The above are the charges he was convicted of.

The termination advice which is the letter of 2 March, 2012, in the second paragraph stated as follows;

The Disciplinary Committee found you guilty of committing the following acts of misconduct:

-wilful disobedience of a lawful order given by the employer

-abuse of company vehicle or alternatively, misuse of company property, that is for personal gain.

The above are the same charges which appears in the letter of 23 February, 2012 to the Appellant in paragraph 2 of that letter.  The Court is therefore at a loss as to how the Appellant concluded that the letter of 2 March, 2012 contained fresh charges; given the observation above.

Ground of appeal (d) says there was no prejudice to the company.  Indeed, there was no actual prejudice because the Appellant’s misconduct was realised quickly and he was called back to the depot.  However, from the evidence of the Operations manager, it is clear there is serious potential prejudice to the company if truck drivers do not follow laid down procedures on routes and convoys.  Clients whose goods are being transported by the transport company want to be assured that their goods will get to the intended destination safely through use of approved routes and in convoys for security against thefts and damage during transit.

The Operations Manager’s evidence to the committee was that if the company does not follow the procedures agreed to with a client, the client can cancel the contract, resulting in the company losing business.  In any event the fact that there is no actual prejudice because the misconduct is quickly discovered is not a defence for the Appellant.

Grounds of appeal (e) and (f) are saying there was no instruction on which route to use neither is there an instruction to travel in a Copper Convoy.  These two grounds have no merit and should be dismissed because the Appellant admitted at the disciplinary hearing and the appeal hearing that on 21 February, 2012, he was “instructed to leave the depot at 6:00 am to proceed with a Copper Convoy from Harare to Forbes”.  So even if they were no standing or permanent instructions, we know from his own admission that he was instructed to proceed with a Copper Convoy and he abandoned that Convoy  and went on a frolic of his own, in contravention of that instruction he had been given.

In view of the above reasons, the Court has no option but to dismiss the appeal.  Each party will pay its own costs.