Robson Soya v Colbro Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO. LC/H/427/2014
HARARE, 27 JUNE 2014
CASE NO.
JUDGMENT NO. LC/H/427/2014
---------




IN THE LABOUR COURT OF ZIMBABWE	 JUDGMENT NO. LC/H/427/2014

HARARE, 27 JUNE 2014		           	                 CASE NO. LC/H/97/14

AND 18TH JULY 2014

In the matter between:-

ROBSON SOYA					Appellant

And

COLBRO TRANSPORT				Respondent

Before The Honorable F.C. Maxwell, Judge

For Appellant		Mr. L. T. Musekiwa (Legal Practitioner)

For Respondent		Mr. A. K. Maguchu (Legal Practitioner)

MAXWELL, J:

This is an appeal against the decision of the Managing Director of the Respondent to uphold the decision of the disciplinary committee.

Appellant was employed by the Respondent as a driver.  On 9 December 2013 Appellant is alleged to have sent two security guards to go and look for a buyer of fuel.  It is alleged the two went and came back with Mr. Tendai Gutsa in his vehicle.  It is also alleged that they drove into the depot and were noticed by private investigators.  The private investigators closed the gate.  Mr. Gutsa tried to drive out but was blocked.  The private investigators summoned the Security Officer, Mr. S. Chitongo who came and questioned the guards to explain what was happening.  The guards are alleged to have confessed that they had been sent by the Appellant to look for a buyer for fuel.

Appellant was summoned and asked about the allegations.  It is alleged that he made a verbal admission and on being asked to put it in writing alleged he could not see at night.  The security guards and Mr. Gutsa gave written statements on their involvement.  The private investigator and the security officer wrote reports of what transpired.

On 18 December 2013 Appellant appeared before a disciplinary committee charged with contravening clause 5.1 of Annexure 2 of the Transport Industry Code of Conduct SI 67/12 (Proven case of theft).  He was found guilty of attempted theft and was dismissed from employment.  On 2 January 2014 he appealed to the managing director who upheld the disciplinary committee’s decision.  On 5 February 2014 Appellant appealed to this Court.  The grounds of appeal are;

The Managing Director erred in confirming that the accused was properly found guilty and the Committee had powers to craft the code of conduct to secure a conviction.  The committee charged the Appellant of contravening section 5:1 of the SI 67 of 2012 which is in respect of the proven case of theft.  There was no evidence of theft that was committed and neither was the Appellant found attempting to steal from the employer.  The evidence relied by the employer was that of people who were security guards and had allowed the said potential buyer into the premises.  Further the potential buyer was apprehended in the company of the security guards and the Appellant was not there.  The alleged fuel buyer was at the gate on his way out of the Respondent’s premises and he had no fuel.  The Appellant was found guilty of attempted theft when there was no causal link between him attempting to steal from the employer and the buyer being apprehended at the gate on his way out being empty handed without the alleged fuel.

The Director erred in upholding the decision of the committee disregarding the fact that principles of natural justice were not followed.  The committee relied on the accomplice witnesses without affording the Appellant the opportunity to cross-examine them and test their credibility.  Further the committee did not even bring the buyer to testify.  The Committee relied on the evidence of the investigating security whose evidence was hearsay and was not corroborated by any other witness.

The Managing Director erred in coming up with the conclusion that the theft was interrupted.  The alleged fuel buyer was intercepted at the gate on his way out.  He was not intercepted inside the yard with the Appellant trying to drain fuel.  When he was intercepted the Appellant was not in the picture and also considering the first account which was given by the security guards and the buyer.  Infact the security guards had implicated a different person altogether and the Appellant was simply put in the picture because he was at the premises on the day and time in question.

Further the Managing Director erred to find that the driver had an empty container.  Further if the Director found out that the Driver could not rush out without the goods belonging to another driver without collecting them he also failed to appreciate that same could apply in the case of fuel.  The ideal thing is that the culprits should have been caught in the act or attempting instead of when leaving the premises without anything else.

Further the Appellant’s vehicle had no fuel upon inspection in loco and the committee failed to grasp that he could not invite someone inside to take fuel when he didn’t have such fuel and his vehicle was almost empty.

The Director erred in regularizing the predetermined penalty of the committee without hearing any submission in mitigation.

The Director erred by creating a case for the panel when accepting that there was no evidence that there was no source where the Appellant could have obtained diesel for sell within the year.  This was not brought up by the panel neither was it indicated that there was a source of diesel at the gate where the buyer was arrested on his way out.

There was no evidence that the Appellant did send the guards to bring in the buyer.

Appellant prays that his dismissal be set aside and he be reinstated to his position without loss of salary and benefits.  In response Respondent argued that;

(1)	It was fair and proper for the Disciplinary Committee to have charged Appellant with attempted theft though the Code of Conduct did not explicitly carry a charge labeled attempted theft.

(2) 	Written reports, unless discredited constitute admissible evidence in a court of law.

(3)	The issue of the theft being interrupted is not an invention of the Managing Director as it is clearly written down in the “opening remarks” of the minutes of the hearing.

(4)	To argue that the culprit should have been caught in the act, for it to constitute an offence, is another attempt to turn this into a criminal court case and not a Labour Court matter.

(5)	In the appeal to the Managing Director Appellant’s lawyer stated that the inspection done showed that the truck had less than 20 litres of fuel left after delivering.  In the appeal to this court the same lawyer states that the vehicle had no fuel upon inspection in loco.  This is a clear contradiction, if not outright dishonesty, and Respondent is convinced is good ground to have the whole case thrown out as Appellant’s lawyers prove very unreliable in their defence.

(6)	It is a misleading statement that the penalty was predetermined.  No evidence has been proffered to support that statement.

(7)	Statements by both guards on duty as well as by the private investigator all point to Appellant having sent the guards.

Respondent prayed for the dismissal of the appeal for lack of merit and credibility.

In the first ground of appeal, Appellant challenges the action of the Managing Director in confirming the conviction for attempted theft.  In the heads of argument Appellant’s counsel submits that Appellant was not charged in the alternative and therefore should have been found not guilty when a proven case of theft could not be sustained.  Appellant’s stance ignores the fact that the code of conduct “sets out broad guidelines and procedures to be followed in the administration of discipline and the processing of grievances.”  The said code encourages management to use its discretion “within the framework of and in accordance with the spirit of the code”

(section 4 and 5 of SI 67 of 2012).  In my view attempted theft is a competent verdict to theft.  It would have been a different issue if Appellant was found guilty of an offence not related to theft.  In any event, to borrow the words of GWAUNZA JA in the case of Malimanji v CABS 2007 (2) ZLR 77 @ 79.

“Details of conduct that would constitute such offences must be viewed in the light of being examples.  They could not possibly have been meant to be exhaustive.  Viewing them as exhaustive would result in the ridiculous situation where someone who commits an offence that in the ordinary sense would constitute the conduct in question, e.g. dishonesty, would walk free simply because the specific offence was not listed as an offence.  That could not have been the intention of the drafters of the Code, who, in general, are not schooled in the law”.

For the above reasons I find no merit in the first ground of appeal.  The second ground of appeal alleges procedural irregularity in that no witnesses were availed for cross-examination.  Appellant also complains that the committee relied on hearsay evidence and there was no corroboration of the investigating officer’s evidence.  This ground has been improperly raised as it concerns issues for review.  I therefore dismiss it on that basis.

The third ground of appeal challenges a factual finding that the theft was interrupted.  It is trite that no appeal lies on a factual finding unless there is a clear misdirection or the decision reached is irrational.

See Chenga v Chikadaya & Others SC 232/10

Vengai v Chuma & Another SC 249/10

Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 @ 670.

Appellant has not alleged that the decision of the Managing Director and of the Disciplinary Committee is so outrageous and in defiance of logic when compared with the evidence before them.  There is therefore no merit in this ground of appeal and I dismiss it.

The fourth and fifth grounds of appeal also challenge factual findings and are therefore without merit.  The sixth ground of appeal criticizes the Managing Director for regularizing the predetermined penalty of the Committee without hearing any submission in mitigation.  The minutes of the Disciplinary proceedings do not show that the penalty was predetermined.  The issue of hearing submissions in mitigation is procedural and therefore should be raised on review.  I therefore dismiss this ground of appeal for being improperly raised.

The seventh and eighth grounds of appeal raise the issue of sufficiency of evidence.  In the case of ZESA v Dera 1998 (1) ZLR 506 it is stated.

“In a civil case one is concerned to do justice to each party.  Each party has a right to justice and so the test for that justice has to balance their competing claims.  Hence the “balance of probability test.”

I am not convinced that on a balance of probabilities a wrong conclusion was reached by the Disciplinary Committee and confirmed by the Managing Director.  I therefore dismiss these grounds of appeal as well.

Consequently the appeal being devoid of merit be and is hereby dismissed with costs.

MESSRS MUSEKIWA & ASSOCIATES, Applicant’s legal practitioners

DUBE, MANIKAI & HWACHA, Respondent’s legal practitioners