Wilson Mano v Dairibord Zimbabwe Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/250/16
HELD AT HARARE ON 12th JANUARY, 2016
CASE NO. LC/H/709/11
JUDGMENT NO. LC/H/250/16
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IN THE LABOUR COURT OF ZIMBABWE	     JUDGMENT NO. LC/H/250/16

HELD AT HARARE ON 12th JANUARY, 2016     CASE NO. LC/H/709/11

AND 22nd APRIL, 2016

In the matter between:-

WILSON MANO								    Appellant

And

DAIRIBORD ZIMBABWE LIMITED 					    Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T. Goro (Legal Practitioner)

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

MHURI J.

Appellant was in Respondent’s employ as an Engineer.  In terms of Section 29.4 and 29.18 of Respondent’s Code of Conduct (THE CODE) Appellant was charged with neglect of duty/responsibility and damage to company property.  He was found guilty of both and was issued with a final written warning for the first charge and a dismissal for the second one.

He unsuccessfully appealed against both the verdict and penalty through the Respondent’s Appeals structures.

Aggrieved, it is to this Court that Appellant then lodged another appeal.  In his notice of appeal, Appellant raised nine (9) grounds of appeal some of which (1.3 to 1.5) had not been raised before the Appeals Authorities and others 1.6 to 1.9) are repetitive and speak to the same issues, vis that, he was not the proximate cause of the boiler blowing, he was not around but in Harare when the boiler blew off and that he could not be responsible for the negligence of another person.

This Court is not going to deal with the grounds which were not placed before the Appeals Authorities for consideration.  It is not legally proper to attack the Appeals Authority on matters which were not brought before them for consideration.

FUNGAI KHUMALO vs ZIBAGWE RURAL DISTRICT COUNCIL

SC 21/05

PINIEL CHINODA vs ZIMSUN (PRIVATE) LIMITED T/A MAKASA SUN HOTEL SC 28/05

During the disciplinary hearing and after the complainant had gone through the allegations, the record shows that in response, Appellant was in agreement with the charges levelled against him.  The record also shows that the facts which were found established during cross-examination were inter alia that:

There was no system in place to ensure that boilers are checked and monitored regularly.

When the accident happened, the Appellant had last checked the boiler two weeks before.

Appellant admitted that he was not monitoring the boiler regularly.

The quote for repairing the boiler was $259 000 – plus $34 000 for moving and installing another boiler from Kadoma Dairy to Bulawayo Dairy.

The record also shows that the Disciplinary Committee found as established that:-

It is the Engineer’s responsibility to ensure that boilers are always in good working condition.

It was Appellant’s responsibility to put a system in place that allows for effective checking and monitoring of the boiler.

The boiler had been malfunctioning for 2 months prior and this report had been made but not attended to.

Appellant did not challenge the above submission by the complainant.

Appellant’s submission that he had checked the boiler two (2) weeks prior and was found to be functioning was contradictory to the complainant’s submission above.

There was no effective communication between Appellant and his subordinates.

He was not in control of the situation.

Appellant’s absence did not absolve him from being accountable for the accident.

Aggravating circumstances existed which could result in disastrous explosions leading to loss of limp, life and property.

The above facts found as established by the Disciplinary Committee clearly show that the Disciplinary Committee was alive to the duties and responsibilities placed on the Appellant.

It was his duty to:-

Ensure that the safety mechanisms on the boilers were in proper working condition, so that in the event of a problem, they would actuate.

In casu, a malfunction was reported two months before but was not attended, as a result when the boiler attendant forgot to switch on the water supply, the safety devices did not actuate because they were not working.

According to Appellant’s response, they had not been checked.

Boilers are checked and monitored regularly.  This would ensure that malfunctioning plant machinery and equipment are restored back to operation in the shortest possible time.

It was his responsibility to ensure the implementation, maintenance and to facilitate the improvement and revision of the work instructions.  (Engineering Pre-requisite Programs – Record page 23, 29)

The Disciplinary Committee having found as unchallenged the submission that a report of a malfunction had been made two (2) months prior and was not attended to, it goes without saying that Appellant failed in his duty and responsibility to conduct regular checks.  If he had, he could have picked that the safety devices were not in good working order and would have had them repaired.

For Appellant to say that he was not the proximate cause of the damage because of the boiler operator’s failure to switch on the water supply cannot absolve him.  The same applies to his submission that he was in Harare and had left Uriga in charge.  If the malfunction had been reported and the blow up occurred while he was in Harare, that would have absolved him.

The Disciplinary Committee found Appellant guilty of neglect of duty/responsibility.  As aggravation, it found Appellant grossly negligent as a result of which the accident was caused.  It also found Appellant guilty of damage to company property with aggravating circumstances.  The aggravation emanating from the unsafe operation of the boiler.

From the above, it is clear that the Disciplinary Committee found, on the facts before it that Appellant’s conduct fell within the ambit of the definition of gross negligence as stated in the case of –

ZEETA MANUFACTURERS (PRIVATE) LIMITED

vs

ZIMBABWE UNITED FREIGHT COMPANY LIMITED (1) ZLR 337,

that,	“When an objective test is applied, gross negligence is no more than ordinary negligence of an aggravated nature.  How aggravated the negligence must be before it becomes gross negligence is a matter that can only be decided on the facts of each case.”

See also the case of

STANDARD CHARTERED BANK OF ZIMBABWE LIMITED

vs

CHIPININGU SC 104/2002

in which gross negligence was defined as –

“ordinary negligence of an aggravated form which falls short of wilfulness.”

Having found that there were aggravating circumstances, and that the second charge called for dismissal as stipulated in the Code, the Disciplinary Committee imposed a dismissal penalty.  As mentioned time without number in various Supreme Court cases, the employer’s exercise of discretion on penalty cannot lightly be interfered with.

See: 	MALIMANJANI vs CENTRAL AFRICA BUILDING SOCIETY

SC 47/07

INNSCOR AFRICA (PRIVATE) LIMITED vs LETRON CHIMOTO

SC 6/2012

The Disciplinary Committee having exercised its discretion judiciously so in my view, this Court finds no basis to interfere with the penalty.  The Appeals Authority’s decision confirming both the verdict and penalty is beyond reproach and is to be confirmed.

In the circumstances the appeal is to be dismissed.  It is therefore ordered that the appeal be and is hereby dismissed in its entirety with costs.

Kadzere, Hungwe & Mandevere – Appellant’s legal practitioners

Dube, Manikai & Hwacha – Respondent’s legal practitioners