Roy Muchemwa v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
LC/H/181/2021
HARARE, 07 OCTOBER 2021
CASE NO. LC/H/128/21
JUDGMENT NO. LC/H/181/2021
CASE NO LC/H/128/2021
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT LC/H/181/2021

HARARE, 07 OCTOBER 2021			CASE NO. LC/H/128/21

AND 22 OCTOBER 2021

ROY MUCHEMWA 	   				Applicant

DELTA BEVERAGES (PVT) LTD 		         Respondent

Before Honourable G. Musariri, Judge

For Applicant		-	Mr R. Muchemwa, Applicant

For Respondent     	-	Mr K. Ncube, Attorney

MUSARIRI, J:

Appellant appealed to this Court against the decision of Respondent’s Works Council.  The gist of the appeal is set out in the first three grounds of appeal as follows,

“1, The Works Council erred in finding that Appellant did not take reasonable care in the performance of his job despite the fact the employer did not provide air time or alternative means of communicating in the event of network challenges thereby overlooking the fact that Appellant communicated the vehicle breakdown.

2. Having found that Appellant’s communication was received by his supervisor who tried to call Appellant unsuccessfully, the Works Council erred at law in finding Appellant guilty (sic) negligence and in imputing on him liability for the loss incurred as it was evident that there was a network challenge in spite of which his supervisor did not take further action to try and locate the Appellant to avoid the loss.

3. The works council erred grossly and misdirected itself on the facts in finding that Appellant was negligent as he only used a passerby’s phone after the loss thereby casting a blind eye to the fact that the breakdown occurred at 0145hrs which made it impossible to obtain help or search for network”

It is common cause that Appellant worked for Respondent as a Freight Driver based in Bulawayo.  On the 19th December 2020 in the evening he was scheduled to deliver beer to their Beitbridge distribution center.  After midnight he sent a message on their Whatsapp Group reporting a tyre puncture breakdown.  Appellant stated that he realised his message was incomplete but when he tried again to reach his employer he failed due to network challenges.  Appellant further stated that early morning robbers attacked him, damaged his truck and stole beer. He then managed to use a passerby’s phone to reach his employer around 11.00am.  Minutes of the hearing before the Works Council are filed of record. The following excerpts are instructive,

“27…there is group created for our breakdowns, if l send a Whatsapp message there on that group, the workshop should come to attend to me, though the message didn’t have a location, they should have used tracking system to locate the vehicle.  The supervisor said he tried to call me within 5 minutes but my phone was no longer reachable.

53. On grey areas mentioned in determination, from our discussion you said you sent a message and then you were unable to send another, is that not a grey area.  I am trying to understand your submission, network disappeared from the same location?

54. Are there not challenges like that?

55. They could be but we never know to be honest that is why it is said to be grey”

The repeated reference to “grey” area in the minutes betrays the Works Council’s thinking.  It is apparent, though not stated, that there was a suspicion that the robbery had been staged.  The suspicion was further fueled by alleged lack of “footprints” and tyre puncture on the “side “ but not “underneath”.  I consider that the suspicion clouded the reasoning of the council.  It is as if the issue was whether or not there was a robbery.  The charge was one of negligence it being alleged that the employee failed to take reasonable care to ensure the security of the employer’s property.  Appellant gave his account of what happened.  His version was not contradicted any eye- witness.  Rather the employer relied on inferences they drew from the circumstances.  However circumstantial evidence only avails where the inference sought is the only reasonable inference that can be drawn from the circumstances.  A reasonable inference can be drawn in the present case that Appellant was indeed attacked and robbed, such inference is corroborated by the medical report which noted injury to Appellant’s eye.  The real issue is what else could Appellant have done to safeguard the truck and beer beside what he did.  He sent a Whatsapp message which his supervisor admitted he saw.  It was sent on the Whatsapp group created to notify breakdowns.  When Appellant realised his message was incomplete follow –up failed due to network failure.  With this evidence and the record before it.  I consider that the Works Council grossly erred in finding Appellant guilty of misconduct.

Respondent in its Heads of Argument cited the case of Zvokusekwa vs Bikita SC 44/15 where Garwe JA stated

“…where findings of fact are attacked, there must be an allegation that there was a misdirection on the facts which is so unreasonable that no sensible person properly applying his mind would have arrived at such decision …If it is evident that the gravaman is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law”.

The underlined part of the dicta actually supports Appellant’s position.  That, in essence, his position was that the works council mistook the facts and reached a wrong conclusion.

Wherefore it is ordered that,

1, The appeal be and is hereby allowed;

2. (a) Respondent shall reinstate Appellant without loss of salary & benefits, or

(b) If reinstatement is untenable, Respondent shall pay Appellant damages in lieu of reinstatement in an amount either agreed by the parties or assessed by this Court; and

3. Each party shall bear its own costs.

G MUSARIRI

J-U-D-G-E