Abeauty Mujeye V Delta Beverages

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/715/16
HELD AT HARARE 27 OCTOBER 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/715/16

HELD AT HARARE 27 OCTOBER 2016			CASE NO LC/H/308/05

& 4 NOVEMBER 2016

In the matter between:

ABEAUTY MUJEYE				Appellant

And

DELTA BEVERAGES				Respondent

Before The Honourable Chivizhe, J

Appellant			In person

For Respondent		G Chingoma (Legal Practitioner)

CHIVIZHE, J:

The appeal was noted against the determination of the Respondent’s Works Council dated 6th May, 2005.    The appeal arises from the dismissal of Appellant after it was found that he had committed an act of misconduct i.e. Negligence Annexure II of Offence 8.2. as per Delta Beverages Code of Conduct.

The Appellant was employed as a Driver.  In that capacity he also held responsibilities as a Salesperson.  He would receive cash from clients and was required to keep cash in lockable safes inside the truck.  There was a standard operating procedure for drivers to, before setting out, check the truck to ensure that lockable safes are working.

On the 27th of December 2004 after having carried out duties along the Beatrice route he failed to account for cash totalling $8,830,000.00.  The Respondent arraigned the Appellant before a disciplinary authority on the 7th of April, 2005 to face charges of Negligence, failure to exercise proper care of cash.  The Appellant in the hearing submitted that he had the cash in two places, i.e. in a bag and the other which went missing in his dustcoat’s pocket.  He could not explain how the money went missing.  He however admitted to having driven out with only one out of the two safes working. He however admitted knowledge of the standard operating procedure.

The Disciplinary authority in a decision handed down on 15th April, 2015 found the Appellant guilty on the charge on the basis that Appellant had failed to check the safes before departing from the depot.  Secondly the Appellant had not raised an alarm that the safe was not working when he visited the next customer.  Finally it was the Disciplinary Authority finding that the amount lost had been kept in Appellant’s jacket pocket whilst the rest was in a bag.  The committee after weighing aggravatory/mitigatory factors then imposed a penalty of dismissal from employment with effect from 15th of April 2015.

The Appellant aggrieved noted an appeal to the Head of Department and when the appeal was dismissed he appealed to the Works Council.  His grounds for appealing were two i.e.

The determination was too harsh

My Head of Department never considered my service with the company

The Works Council in their determination upheld the decision of the Head of Department.  The Appellant still aggrieved then noted the present appeal.

The appeal is premised on the following grounds:

The case I got fired for happened in December 2004 but was not dealt with till I was injured.

My superior did not take into account the time I worked for the company.

I was employed as a driver now I was injured at work I cannot drive any more because of the injury.

The appeal is opposed.  The Respondent through its Notice of Response and Heads of Argument took a preliminary point.  At the hearing the Respondent counsel conceded to the court addressing both the preliminary point and the merits in its judgement.

The preliminary point taken is that there is no valid appeal before the court as the grounds submitted are invalid grounds.  Mr Chingoma in oral submissions contended that the grounds were invalid on the basis that, firstly no allegations of any misdirection on the part of the Works Council is raised or demonstrated in any of the grounds.  Secondly the first ground of appeal is raising a fresh issue which was not before the Respondent’s Works  not clear.  Mr Mujeye, as a self actor, was unable to respond meaningfully to the point in limine.

The preliminary points taken are clearly with merit.  In respect to ground number I it is very clear from a perusal of the record that the ground is being raised for the first time in these proceedings.  The record shows  on pages 12 and 24 that when Appellant noted his appeals to the two hearing authorities a quo his grounds of appeal did not include the complaint he seems to be making that the employer delayed in instituting disciplinary proceedings that he then got injured at work in the interim period and as a result he no longer can perform duties as a driver.  That issue not having been placed before the Works Council is clearly not properly before the court.  It is a trite position at law that the court sitting as an appeal court is limited to issues on the record and those ensuing from proceedings in the court a quo.  The court was aptly referred to Chikanda vs United Touring Company SC 7/99.

In regard the second ground of appeal that ground is not very clear.  The Appellant has failed to show clearly what he is complaining about. If his is intention is to attack the decision of the Works Council it is not clear if he is attacking the determination on the guilty verdict or the penalty. That much is not clear from Appellant’s submissions.

The last ground is also clearly an invalid ground.  The Appellant is saying he can no longer  drive because he was injured at work.  He is not attacking the decision of the Works Council perse.  The ground is clearly an invalid ground.  On the basis of the invalid grounds the appeal ought to be struck off the roll.

In the event that the court is wrong on any point above I shall, for completeness, address the merits.  The record shows clearly that the Appellant did admit in the first hearing to the charge.  The charge levelled against him was of Negligence which is defined in the Code to mean:

“Negligence – failure to exercise proper care and regard to the manner of discharging duty to the extent that tacks have to be repeated or equipment or person are not at risk of damage or injury, or negligence driving or driving in such a manner that damages may be caused to property or injury to any person.”

The Appellant during the hearing admitted knowledge of the standard operating procedures.  He however on the date failed to follow those procedures.  He then lost money belonging to the Respondent in circumstances where he had gone out with a truck which had no lockable safe. It is clear based on the facts he was guilty of negligence failure to exercise proper care.

The Appellant in the previous hearings raised the issue that it was him who had reported the loss and therefore the hearing authority ought to have considered that.  The issue is however irrelevant on a charge of Negligence failure to exercise proper care.  It would have been relevant had the Appellant been facing a charge of Dishonesty or theft under the Code, where the issue of moral blame worthiness becomes paramount.

The appropriate penalty for the charge of Negligence on the first breach as outlined in Annexure 11 classification of offences is dismissal.  It is very clear from a perusal of the record that in arriving at the dismissal penalty the Works Council did weigh the aggravatory circumstances as against the mitigating factors. They felt that the aggravatory circumstances outweighed the mitigatory factors and imposed the dismissal penalty.  It is a discretion exercised by the Works Council which this court cannot lightly interfere with unless there has been gross unreasonableness. The Appellant has not succeeded to establish unreasonableness in casu.

In the result the appeal must clearly fail.  It is accordingly ordered as follow:

The appeal be and is hereby dismissed with no order as to costs.

The determination of the Works Council handed down on the 6th May, 2005 is upheld.

Dube, Manikai & Hwacha, respondent’s legal practitioners