Nickson Munaki v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO
LC/H/76/2023
HARARE 1 MARCH 2023
CASE NO LC/H/1046/22
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IN THE LABOUR COURT OF ZIMBABWE	         	JUDGMENT NO LC/H/76/2023

HARARE 1 MARCH   2023                              		 CASE NO LC/H/1046/22

9 MARCH 2023

NICKSON MUNAKI					APPELLANT

DELTA BEVERAGES (PVT) LTD			RESPONDENT

Before the Honourable G. Musariri Judge:

For Appellant			Mr P. Chakabuda, Unionist:

For Respondent		Mr K. Ncube, Attorney:

MUSARIRI, J:

Appellant Appealed to this Court against his dismissal from employment by Respondent.  The appeal is provided for by section 92D of the Labour Act [Chapter 28:01].  Respondent opposed the appeal.

The grounds of appeal were four-fold.  However, they basically raise 2 issues which shall be dealt with in turn.

Whether the Works Council grossly erred in finding appellant guilty of misconduct:

The charge of misconduct is set out in respondent’s letter to appellant dated 15th September 2022 in the following terms,

“8.2 	Negligence – Negligent driving or driving in such a manner that damage may be caused to property or injury to any person.”

In a hand-written note dated 16th August 2022 appellant stated that

“On the 12th of August…On my way back to Karoi DBC when I was around Magunje turn off around 2159 hours I was facing an oncoming truck we both deep (sic) our lights but behind the truck there was a tanker truck which suddenly wants to overtake and came across to my lane

trying to overtake. I suddenly avoid head on collision by pulling off to the left side of the road.  Since the truck was full of (load) I tried to apply brakes but move out and hit a side tree. Thank you.”

Respondent’s VCC (committee) carried out investigations. Their report dated 23 August 2022 has the following dialogue;

“NM:  I pulled off the road to avoid head on collision.

JT:     Did you reduce speed?

NM:   I was travelling at 66km per hour I was not over speeding.

TS:     Yes, you were travelling at 66km per hour, Track IT confirmed that and impact detection

happened at 58km per hour, therefore there was not significant reduction in speed. You

did not reduce your speed.

TC:    What speed should you travel at night?

NM:  60 km per hour.”

By his own account, appellant drove at an unsafe speed considering that the accident happened late at night.  Visibility was poor as he was using his lights which he dipped whilst facing the oncoming truck. That the speed limit for that stretch of the road is 80km per hour does not assist appellant.  That is an upper limit in optimal conditions.  Drivers are required to drive at a sage speed depending on the conditions prevailing.  It is clear that appellant exceeded the safe speed in the circumstances.  He drove in “a manner that damage may be caused to property or injury to any person” as charged.  It is therefore concluded that the Works Council correctly upheld the conviction of appellant.

Whether the Works Council grossly erred in upholding the penalty of dismissal:

The mitigating factors appear from the findings of respondent’s VCC thus

“The driver had been on duty for 14 hours and 30 minutes hence the driver could have been tired.

The driver lacked experience since he had been on the job for one month. The driver was driving a vehicle that he had not been converted for.  The vehicle left the depot late for the route.”

What aggravates the offence is that a collision occurred which resulted in damage to respondent’s property, the death of one crew member and injury of the other member. The assessment of penalty is not an exact science but an imprecise art.  It involves value judgement

where reasonable men may disagree.  This Court may have been persuaded that a lesser penalty was called for considering the factors of fatigue and inexperience.  But then again sight cannot be lost of the aggravation emanating from the loss of life.  So, it cannot be said that the employer erred by being swayed by the eminent aggravating factors.

See MTC v Mutangadura 2012 (1) ZLR 183(s) where ZIYAMBI JA stated, at 186 B,

“In the absence of a misdirection or un reasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion to dismiss an employee found guilty of a misconduct which goes to the root of the employment contract.”

The offence in casu was classified in the respondent’s code of conduct as a dismissible offence.  Clearly it goes to the root of the employment contract.  Accordingly, it is concluded that the Works Council correctly upheld the penalty of dismissal.

WHEREFORE IT IS ORDERED THAT

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E