Obey Tavaziva v Blue Star Logistics

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/118/14
HELD AT HARARE ON 10THFEBRUARY, 2014
CASE NO. LC/H/252/11
And 14TH MARCH, 2014
JUDGMENT NO LC/H…./14
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IN THE LABOUR COURT OF ZIMBABWE		                   JUDGMENT NO LC/H/118/14

HELD AT HARARE ON 10THFEBRUARY, 2014		CASE NO. LC/H/252/11

And 14TH MARCH,  2014

In the matter between

OBEY TAVAZIVA				Appellant

And

BLUE STAR LOGISTICS			Respondent

Before The Honourable L.F. Kudya : Judge

For Appellant:	Farai Nyamayaro (Legal Practitioner)

For Respondent :	S. M.V. Nyathi (Legal Practitioner)

KUDYA. J

This is an appeal against the decision of the Respondent’s General Manager who upheld the Appellant’s dismissal following a disciplinary hearing where Appellant was found guilty of unlawfully disobeying a lawful order and gross inefficiency in performance of his work in breach of the Respondent’s Code of Conduct.

The background to the matter is that Appellant who was in Respondent’s employ as a driver was asked around knocking off time to travel to Triangle toferry sugar from there and deliver it to Respondent’s client in Harare. After fuelling the truck, Appellant however did not leave. Instead he left the following morning. During the trip he delayed further by parking at Jerera. Finally when he got back to Harare the Respondent was out of time line within which its client should have received the sugar. After the client expressed displeasure about the delay, Appellant was charged with the acts of misconduct referred toabove. He was found guilty and dismissed from his job. He appealed internally without success until he came to this Court where he lodged the instant appeal.

The grounds of appeal are:

General Manager (GM) misdirected self by confirming the decision of the disciplinary committee without conducting any hearing on the matter. He thus treated matter as not an appeal but review.

General Manager erred by repeating disciplinary committees position without looking at appeal.

Just like the Chairman of the Disciplinary Committee the GM failed to note the shortcomings of the Respondent and just endorsed the decision of the Disciplinary Committee.

Assuming that Appellant was correctly convicted, dismissal was grossly unreasonable given facts of the case and Appellant’s mitigation.

G.M. should have realised that no valuable evidence was adduced before the Committee to warrant a conviction and a dismissal.

In the premises Appellant prayed that the appeal succeed with him being reinstated without loss of benefits and pay alternatively to be paid damages in place of reinstatement.

In response to the appeal the Respondent maintained that:-

The GM did not err. An appeal can be heard on the paper without a hearing

GM did not err. He considered appeal before him and made his own decision.

GM did not err. He considered all the evidence, including the shortcomings and made his decision on the appeal.

GM did not err. He considered the mitigatory factors and came up with an appropriate penalty which does not induce a sense of shock.

GM did not err. He weighed the evidence and determined the appeal and an appropriate penalty

In the result, the Respondent prayed that the appeal be dismissed with costs.

A reading of all the appeal grounds and the responses thereto coupled with the oral submissions made on the matter speak to principally two issues.  These are that the Appellants acquittal or conviction on the misconduct charge lay on the cumulative effect of the evidence and facts of the matter.

Secondly, if indeed the Appellant was guilty was the penalty of dismissal appropriate in the circumstances. It is therefore these 2 main issues which this judgment will address. It is not wise in the Court’s view to individualise the grounds as these are essentially asplit of the same grounds to come up with numerous grounds which does not add value to the matter. In the same manner, the Court will also address in brief the procedural aspect raised by the appeal that is in respect of how the General Manager handled this appeal. As correctly pointed out by the Respondent it is not cast instone that a hearing should be conducted on appeal. It is legally permissible for the appeal body to determine the appeal based on papers before it only. Since the General Manager chose the approach of dealing with the appeal on the papers the Court cannot fault him for doing that.

Turning to the merits, the law is clear that the exercise of discretion of the tribunal aquo can only be interfered with where it is clear that it was so outrageously exercised - see Nyahondo vs.  Hokonya 1997 (2) ZLR 475 (SC). Applying the principles in the above case to the facts in instant case, the question to be answered is whether the General Manager’s exercise of discretion can be faulted as to warrant interference both on the conviction plane and on the penalty plane.

On the conviction plane it need be noted that Respondent concedes that when it gave the Appellant the order to go and pick up sugar in Triangle it did not give him the attendant parking fees and his allowances. It however argues that, since the Appellant nonetheless proceeded without these fess and allowances it means that the fees were a non-issue.  It thus construed the failure by Appellant to leave on the day of instruction as a deliberate play to disregard the employer’s instruction.

Appellant on the other hand, says he could not go without the attendant moneys and his delay was to source same to undertake the trip. Such an excuse in the Court’s view does not run in consonance with one who is wilfully flouting an employer’s order.

In fact it is an embarrassment for the employer to have expected the employee to pay dues on its behalf for the performance of its tasks. For such an employee to then turn round and allege that the employee disobeyed a lawful order to carry out its duties would in the Court’s view be an outrageous view. A reading of the record of all the proceedings demonstrates that the employer concedes that it did not give the employee the relevant money for the trip in question. In essence, it argues that it was practice that an employee could claim upon return from business. As however pointed above it is ridiculous for the employee expect the employee to secure resources for the due performances of the employer’s task. To that extent, even if the employee subsequently delayed as happened the employer’s culpability in the matter was more reason to tamper the penalty with mercy as it was the author of the delay in the delivery of the goods in question.

It is settled law that where dismissal is provided for is however not peremptory see NEI Zimbabwe vs Makuzva LC/H/248/68 and Kwangwarivs. CBZ 2003 (1) ZLR 551. It is apparent from the aforegoing reasoning that, whilst the Appellant did not act as ordered his employer also contributed to his breach or the instruction and should thus not have its cake and eat it too. The Court is satisfied that case speaks of poor exercise of discretion by the lower tribunals on the facts and it is important that the appellate court interferes to ensure that justice prevails in the matter.

IT IS ORDERED THAT

Appeal being with merit it be and is hereby upheld with costs.

The order dismissing the Appellant is set aside and in its place the Appellant is reinstated to his original position without loss of salary or benefits but with a final warning. If the employer is not keen to reinstate the Appellant, he is to pay the Appellant damages in place of reinstatement. The damages are to be quantified by the parties failing which either party can approach this Court for quantification of the same.

L. Kudya

Judge (Labour Court)

Farai Nyamayaro Law Chambers – Appellant’s legal practitioners

Coghlan, Welsh & Guest – Respondent’s legal practitioners