Washaya Rapozo v ANZ (PVT) LTD t/a The Daily News

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/101/14
HELD AT HARARE 4TH FEBRUARY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	          JUDGMENT NO LC/H/101/14

HELD AT HARARE 4TH FEBRUARY 2014	           CASE NO LC/H/479/13

& 28TH FEBRUARY 2014

In the matter between:-

WASHAYA RAPOZO					Appellant

And

ANZ (PVT) LTD t/a THE DAILY NEWS			Respondent

Before The Honourable P Muzofa, Judge

Appellant			In person

For Respondent		Mr A Muchadehama (Legal Practitioner)

MUZOFA, J:

This is an appeal against the National Employment Council Appeals Committee’s decision which confirmed the dismissal of the appellant.

The appellant was employed by respondent as a CTP Operator/Machine Assistant.  One of his duties was to process plates for printing.  On the 24th of November 2012 the appellant while processing plates on the main paper of the Sunday Times Newspaper, reproduced pages of the business section that had been printed the previous night of 23 November 2012.  As a result the proprietors of the Sunday Times being unhappy of the product refused to pay for the work done.  The appellant was charged for gross incompetence or inefficiency and a second charge of gross negligence.  He was found liable and dismissed from employment.  Appellant lodged an appeal to the respondent’s Group Chief Operations Manager who dismissed the appeal.  Still dissatisfied an appeal was made to the National Employment Council for the Printing Packaging and Newspaper Industry which also dismissed the appeal.  As a result of the dismissal the appellant noted an appeal to this court.  The grounds of appeal come to the following:

That appellant’s mistake did not amount to gross incompetence or gross negligence.

That the appellant was unaware of the contents of the previous day’s newspaper.

That the penalty of dismissal was too harsh.

The appellant did not dispute that he caused the duplication of

information from the previous day.  However he submitted that as a person of 14 years experience he was not incompetent or negligent but that he made a mistake on this day.  This admission is evident from the disciplinary hearing and even before this Court.  According to the appellant this was a mistake and the company did not suffer prejudice since the paper was bought.  For the respondent it was submitted that the said mistake is actually the gross negligence.  The company suffered prejudice in that Sunday Times did not pay for the work done and the mistake had a potential to cause future loss of business.

The Collective Bargaining Agreement Printing, Packaging and Newspaper

Industry (Code of Conduct) hereinafter referred to as the Code of Conduct defines gross negligence and gross incompetence or inefficiency as follows:-

Gross negligence – an employee is negligent if he/she does not take reasonable care in the performance of his/her duties to avoid acts or omission he/she can reasonably foresee would likely cause loss, danger or injury.

24 – (1)	incompetence – inability to do one’s work

(2)	inefficiency – inability to do the work with the level of skill and speed which the job requires.

Counsel for the respondent also referred this Court to the case of Quest

Motors  Corporation v Nyamakura 2000 (2) ZLR 84.  That case is authority that it is an implied term of a contract of employment that an employee will exercise skill and care in the performance of his duties.  In Selwyn’s Law of Employment 7 ed, p218 cited in the Quest Motor Corporation (supra) the learned author deals with the duty owed by an employee to use skill and care:-

“6.61	The employee undertakes to perform his work competently, using reasonable skill and care.  This, of course must be combined with the employer’s duty to provide all necessary assistance etc, but if the employer has done all he can, then a dismissal for incompetence will usually be fair.”

In this case the appellant was tasked with a duty that he was supposed to carry out with reasonable care and skill.  I say this because the appellant’s job required specialised skill and he was up to it as he confirmed that he had 14 years experience.  On the fateful day it seems the failure by the appellant to check the contents led to a duplication of processed plates of identical pages in both the business and the main paper of the Sunday Times of 25 November 2012.  Although the appellant admitted that the duplication took place his contention is that this was a mistake and not gross negligence.  In my view the requirements of gross negligence and incompetence as defined in respondent’s Code of Conduct fit neatly on the conduct of the appellant.  Clearly appellant did not take reasonable steps in discharging his duties.  Appellant also submitted that, he was not provided with a copy of the Sunday Times paper printed on the previous shift as a result he was unaware that the contents he printed had been printed.  I am not persuaded by this argument there was evidence that there were codes that were used to avoid duplication.  Therefore the work did not solely depend on the provision of the previous day’s Sunday Times.  In addition there was evidence that on the day in question it was appellant and one Ms Mhaka’s responsibility to check the work done but it seems this was not done.  All this is evidence of negligence on the part of the appellant.  I believe the mistake as appellant prefers to call it amounted to gross negligence as defined in the Code of Conduct.

The above takes care of the first two grounds of appeal.

The third ground of appeal is that the penalty of dismissal was harsh, appellant expected a final warning.  According to the Code of Conduct Annexure 2 which outlines the penalties for various offenses gross negligence and gross incompetence or inefficiency attract a dismissal for a first offence.  In any event the position of the law is very clear that an appeal court cannot interfere with a penalty unless it is shown that it is unreasonable in relation to the offence committed, see Malimanji v Central Africa Building Society 2007 (2) ZLR 77.

The appellant has neither shown that his conduct was trivial to attract a lesser penalty nor has he shown that the penalty is unreasonable to warrant interference in the circumstances.

From the above clearly the appeal has no merit and it should be dismissed.

Accordingly the following order is made

The appeal be and is hereby dismissed.

There is no order as to costs.

Mbidzo Muchadehama & Makoni, respondent’s legal practitioners