Munyaradzi Bhunya v Kukura Kurerwa Bus Co.

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/223/2014
HARARE, 27 MARCH 2014
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/223/2014

HARARE, 27 MARCH 2014                                                     CASE NO. LC/H/64/13

& 11 APRIL 2014

MUNYARADZI BHUNYA						Appellant

KUKURA KURERWA BUS CO.					Respondent

Before The Honourable G. Musariri, Judge

For Applicant		Mr. L. Chimutashu, Unionist

For Respondent		Mr. I. Dandara, Manager

MUSARIRI G:

Appellant’s appeal raised both procedural and substantive issues.

Procedure

The procedural issues concern the decision made by the Human Resources Manager rather than the Managing Director.  They also challenge the charges of misconduct on the basis that the charge was exaggerated and that the complainant was reluctant to press the charges.  These complaints concern matters of procedure that is the disciplinary process.  They do not deal with the merits of the decision made.  Accordingly they ought to be raised by way of review rather than appeal, Section 89 (1)(d1) of the Labour Act Chapter 28:01 gives this Court powers of review in labour matters.  Litigants keep overlooking this section and seek reviews disguised as appeals.  They continue doing so at their peril as such appeals will fail.

Merits

Appellant worked for Respondent as an Inspector.  At the time of this case he was acting as a conductor.  He was caught on a Bulawayo - Victoria Falls trip with a passenger who had not paid his fare.  His defence was that his records showed that he had issued tickets which tallied with a head-count of the adult passengers.  He claimed this was caused by a passenger who had paid a full fare for a child.  In this Court his representative admitted that Appellant made an error.  However he sought to adjust the case to say the error amounted to ordinary negligence rather than the gross negligence he was accused of.

Gross negligence was defined in the case of

Zeeta v United Freight 1990 (1) ZLR 337 (HC)

where at 340F Chidyausiku J (as he then was) stated that,

“when an objective test is applied gross negligence is no more than ordinary negligence of an aggravated nature.  How aggravated must negligence be before it becomes gross negligence is a matter that can only be decided on the facts of each case.”

The issue then was whether Appellant’s negligence was aggravated considering all the circumstances? He gave a free ride to a passenger over a distance of about 100 km.  That was a considerable distance. He was performing the duties of a junior.  He was thus expected to show exemplary conduct.  When tasked about his sins he failed to apologise and seek forgiveness.  I consider that Appellant’s negligence was aggravated in the circumstances.  The prescribed penalty for the offence was dismissal on first breach.  Thus the appeal lacks merit.

Wherefore it is ordered that,

The appeal is hereby dismissed.

G. MUSARIRI

J U D G E