Philemon Chimufombo v G.D.C Transport

IN THE LABOUR COURT OF ZIMBABWE                 JUDGMENT NO.       LC/H/85/2013

HELD AT HARARE ON 12 OCTOBER 2011 CASENO.                    LC/H/443/2010

AND 5 JUNE 2012

In the matter between:-



PHILEMON CHIMUFOMBO              -              Appellant

And

G.D.C TRANSPORT                  -              Respondent



Before The Honourable B.T Chivizhe: President



For Appellant       -     Mr T. Thondhlanga (Legal Practitioner)

                          Thondhlanga and Associates



For Respondent      -     Mr. J. Nota (Human Resources Manager)

                          G.D.C Transport




CHIVIZHE B.T.:



      The appeal is lodged as against the determination by the Respondent

disciplinary authority/committee handed down on 24 August, 2010, finding the

Appellant guilty of “Gross negligence” (Section 2.3 of Collective Bargaining

Agreement: Transport Operating Industry Statutory Instrument 94 of 95

and consequently imposing a dismissal penalty.




      The background facts are as follows;
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The Appellant was employed by the Respondent as a Truck Driver. He was

arraigned before a disciplinary authority on 24 august, 2010 to answer

allegations of having committed a misconduct of Gross Negligence.                           The

allegations were that the Appellant had reported a breakdown to the

Operations Manager whilst he was at Featherstone which is 70km from Harare.

The truck had two burst tyres. It was Respondent’s allegation that the Appellant

had defied instructions to wait for breakdown.                Instead after removing the

wheels from axle and substituting Appellant had proceeded to Masvingo. This

was according to Respondent contrary to the company policy requiring the

driver to in these circumstances park and safeguard the truck. In order to avoid

the security risks in those circumstances, the driver is normally provided with a

guard which was the case in this instance.                 By removing the wheels and

adjusting the axle weights the Appellant had according to Respondent also

risked the truck trailer and load either catching fire as the rims scratched the

tarmac.    The truck could have also been impounded by Vehicle Inspection

Department. The Appellant was found guilty on the charge and consequently

dismissed from employment with effect from 24 th October, 2010. The Appellant

has approached this court on appeal.




      The appeal has been noted on one ground which Appellant filed by way

of a notice of amendment dated 7 July, 2011. The ground is as follows;

   1. The Respondent misdirected itself both at law and fact by finding Appellant guilty of Gross
      Negligence when the evidence placed before the Disciplinary Committee did not support the
      allegations raised against the Appellant.

In his relief, the Appellant prays for the setting aside of the decision to dismiss

him and his reinstatement without loss of salary and benefits with effect from


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the date of dismissal. In the event that reinstatement is no longer an option the

Respondent is to pay in the alternative damages in lieu of reinstatement.




       The Respondent has raised two points in limine that the matter is

prematurely before the Labour Court. Firstly it is contended by the Respondent

that under the provisions in Statutory Instrument 94/95 there is no right of

direct appeal to the Labour Court. Section (6) thereof provides instead for a

right to appeal from a decision of the official administering discipline within few

days to the next higher level authority. Section (7) provides for the final level of

appeal with the Chief Executive Officer from whose decision the employee may

then appeal to the Labour Tribunal in terms of (S117 A) the Labour Relations

Act.   The Respondent disputed the Appellant’s submissions that he had

attempted to lodge an appeal to the next level after the Disciplinary Committee

and that the Respondent had denied him the opportunity. The Respondent put

the Appellant to the strict proof of his claims. The Respondent also raised as a

second point in limine that by accepting his terminal benefits, the Appellant

waived his rights in the matter. The Appellant is opposed to both points in

limine. The Appellant’s claim is that the Respondent refused to accept his notice

of appeal. Consequently the Labour Court became the next stage of appeal.

Although the Appellant conceded receiving his salary he denied that he had

waived his rights to appeal.

       Both points in limine were dismissed by the court the first on the basis

that it had not been shown to the court’s satisfaction that recourse to the Chief

Executive Officer would at this stage provide a more effective remedy to the

Appellant; the second on the basis of Supreme Court decision in Isaac

Mukwinya vs Clan Transport SC 47/2001 which states that accepting benefits

does not amount to a waiver of one’s right to appeal.
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      Turning to the merits, the Appellant is basically challenging his conviction

on the charge and the penalty imposed. There is at the centre of the case a

dispute on the facts. It was contended by the Appellant that after he discovered

that two tyres burst he had pulled off the road. Mr T. Charamba the security

detail who was escorting him had contacted the operations manager, a Mr K.

Mawire at the Harare Workshop. Mr Mawire initially instructed them to wait.

They had proceeded to Masvingo upon receiving an instruction from Mr Mawire

to remove the damaged rims. They had removed the rims with the assistance

of another driver who arrived at the scene and replaced them with two wheels

from the other axle.




      The Respondent version is that the Appellant had after the breakdown

allowed Mr T. Charamba to contact the operations manager Mr Mawire for

further instructions. The Operations manager had then instructed them to wait

for a breakdown. The Appellant had however acting contrary to this instruction

changed the wheels, tempering with the mechanics of the truck to travel a

distance of over 196 kilometers to Masvingo. The breakdown bakkie with 2

spare wheels and a mobile mechanic was then dispatched the next day to

attend to the breakdown in Masvingo a distance of 300 kilometers from Harare

instead of 104 kilometres in Featherstone.




      The dispute on the facts as to whether or not the Appellant and Mr

Charamba who was in his company had been instructed by Mr Mawire to

proceed after removing the wheels from the axle formed the core of the charge

of Gross Negligence. As a result of this dispute, the Respondent applied to call



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for the evidence of Mr T. Charamba, the security guard who had been in

Appellant’s company. The application was granted.




      Mr T. Charamba’s evidence was to the effect that; He had on the 6 th

August, 2010 accompanied the Appellant who was travelling to Beitbridge;

when they approached Featherstone Appellant pulled off the road due to two

tyres burst; he had then called the operations manager, Mr Mawire on his

cellphone to advise of the position; Mr Mawire had advised that they should

park the vehicle, sleep there and proceed the next day after the truck had been

attended by mechanics; the Appellant however did not agree; they drove and

had a second breakdown at which point Appellant had with the assistance of

another driver changed the wheels; they then drove to Masvingo; he then

contacted Mr Mawire who replied; “OK”; In Masvingo they waited for a

breakdown.




      Under cross-examination Mr Charamba insisted that Mr Mawire had

advised that they should sleep in Featherstone and be attended in the morning.

He also denied the suggestion by counsel that he had in his initial report to the

employer indicated that Mr Mawire had authorized the changing of wheels

when he replied a message on his cellphone “OK”. He explained that Mr Mawire

had replied “OK” to his message that they were now in Masvingo. Mr Chiramba

however failed to explain the inconsistency between his initial statement that

the rims were badly damaged when Appellant pulled off the road and his

submission before the court that the rims were not damaged when they initially

pulled off the road and that rims only got more damaged after Appellant had

improvised. The witness in my view gave his evidence in an honest fortnight

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manner. Apart from the discrepancy as to when the rims got damaged the

witness was consistent. That issue however in my view does not form the core

of the charge.




        Gross Negligence is not defined under the Code of Conduct. Although

Gross Negligence has not been defined in the relevant Code or in the Labour

Act [Cap 28:01] it has been defined in the case of Circle Tracking vs Mahachi

SC 4/07 where it was stated as follows;

“Although gross negligence is incapable of precise definition an entire failure to give consideration
to the consequences of one’s actions or omissions or a total disregard of one’s duty would constitute
negligence. As per Bickle vs Joint Masters of Law and Order 1980 ZLR 36 (G.D) at 4A. See also
Bank of Central Africa vs James Dube SC 6/04.”




        I am satisfied upon examination of facts in the record and the evidence

that the Appellant was indeed grossly negligent. It is not disputed that the

Appellant is a driver by profession. It is also not in dispute that the truck broke

down as a result of tyre burst. The controller advised the Appellant and the

security detail to sleep in Featherstone and wait for breakdown. The Appellant

without waiting for the technical experts to come from Harare to assess the

nature of the damage to the truck and determine whether the truck was still in

a condition to travel decided to tie the wheels with string and continued with

the journey.       It is clear that as at this stage he really did not care what

happened to the truck.            After the truck had stopped for the second time,

without consulting the controller the Appellant proceeded to exchange tyres

with the assistance of another driver. They then proceeded to Masvingo. Once

again the Appellant failed to give consideration to the consequences of his

actions.
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      The Appellant has attempted to justify his actions by claiming that the

operations manager Mr Mawire had authorized or that he had at some stage

become aware of Appellant’s actions and impliedly consented. This was clearly

disputed by the witness. His evidence was that the Mr Mawire had said that

they should park the vehicle in Featherstone and wait for breakdown to come in

the morning. The Appellant also claimed that as he had removed the burst

tyres and tied them up (a point confirmed by the witness) he was actually

protecting the tyres. That point in my view is immaterial. The point is Appellant

was not a mechanic and as such he was not qualified to have assessed the

nature of damage to the truck when they made the first stop and to decide to

proceed. Whether or not the rim had been badly damaged as at that stage is

also irrelevant. Appellant should have as instructed by the Operations Manager

waited for technical staff to come and assess the damage, attend to any repairs

and then he could proceed.      Appellant clearly defied that instruction.    He

recklessly fixed the truck and proceeded to drive the truck from point of

breakdown for a distance of 196 kilometres with damaged tyres and rims

resulting in the Respondent suffering the loss of US$538.00 in two tyres and

two rims written off.   Based on the facts and evidence in the record the

Respondent clearly established the charge of Gross Negligence in this case.

The charge carrying as it were a maximum penalty of dismissal the penalty was

clearly warranted.




      The appeal is dismissed for lack of merit.




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