Charles Karimunhenga v Terrier Services

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/565/16
HELD AT HARARE 16 JUNE 2016
CASE NO
JUDGMENT NO LC/H/565/16
---------




IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/565/16

HELD AT HARARE 16 JUNE 2016				CASE NO LC/H/164/16

& 9 SEPTEMBER 2016

In the matter between;

CHARLES KARIMUNHENGA				Appellant

And

TERRIER SERVICES					Respondent

Before The Honourable Maxwell, J

For Appellant			W Gumbira (Trade Unionist)

For Respondent		D Phiri (Human Resources Manager)

MAXWELL J:

This is an appeal against the decision of the Chief Executive Officer of the respondent to confirm the decision of the disciplinary hearing committee.  Appellant was working as an international truck driver.  He was driving a tanker truck ferrying fuel from Mozambique and/or South Africa to Zambia and/or the Democratic Republic of Kongo.  On 3 occasions appellant delivered product that was less than what was loaded.  Appellant was charged with gross negligence; loss of product.  The charge read

“You have on various occasions between Novembe2015 and January 2015 recorded losses of product delivered against what you loaded as indicate on you proof of delivery documentation you have further signed acknowledgement and acceptance of these losses.   You have managed to record acceptable deliveries but your inconsistent results are indicative of gross negligence.

. . . . . . “

(Underlining for emphasis)

Appellant appeared before a disciplinary committee and was found guilty as charged.  A penalty of dismissal was meted on him.  On 11 February 2016 he noted an appeal to the Chief Executive Officer of the respondent.  On 24 February 2016 the appeal was dismissed and appellant signed acknowledging receipt of the decision on 25 February 2016.  On 17 March 2016 appellant noted an appeal in this court.

Appellant raised a point in limine that he was wrongly charged for gross negligence as he did not commit any act likely to be termed or seen as negligence, let alone gross negligence.  Appellant contended that the hearing committee and the appeals authority failed to consider his submissions that the shortage was caused by the loading and off-loading machines which are calibrated at different intervals.  Appellant stated that he had no access to the product and all seals were found intact at off-loading.  Appellant further stated that the hearing committee failed to consider his submissions that fuel is a chemical that is widely known worldwide to evaporate by heat and time.  Appellant also stated that the hearing committee failed to consider his submissions that the final written warning he was said to be sitting on was null and void as it was not preceded by a disciplinary hearing as required by the relevant code of conduct.  Appellant also challenged the alleged total shortfall of 801 litres of fuel on the basis that the allowable loss had not been subtracted.  Appellant argues that the shortfall should be 435 litres.  Appellant complains of the dismissal of the point in imine by the Chief Executive Officer.  In his view the hearing committee did not consider his submissions as required at aw.  In conclusion appellant makes a claim for outstanding wages and benefits totalling $5350.92.  Appellant prays for the setting aside of the decision of the hearing committee and on order for his reinstatement without loss of salary and benefits.  If reinstatement is no longer tenable, appellant prays that respondent be ordered to pay damages equivalent to 12 months and punitive damages of 6 months.  Appellant also prayed that respondent be ordered to pay all outstanding wages as claimed.

In response respondent stated that it is not in dispute that appellant failed to account for 801 litres of diesel.  Respondent further stated that appellant admitted to having delivered less product than he had collected.  Respondent also stated that if for any reason appellant had noted that the machines were malfunctioning it was his duty not to accept and sign for the product until such anomalies had been rectified.  Respondent also stated that appellant was paid all that was due to him upon termination of the contract of employment.  And that if there were any outstanding benefits he can take up his grievance with the appropriate authority for redress.  Respondent prayed for the dismissal of the appeal.

I will first deal with the claim for outstanding wages and benefits.

Respondent’s objection is well taken.  The issue of the outstanding wages and benefits was not raised in the proceedings a quo.  An appeal is determined on the four corners of the record of proceedings.  See Sirdars Manufacturers (Pvt) Ltd v Chinya 1995 (1) ZLR 368.  It is therefore improper to raise issues that are not on record from proceedings a quo on appeal.  I therefore find that the claim for a total of $5 350.92 is improperly before me and I therefore disregard it.

The issue before this court is whether or not appellant can be held accountable for the loss of 801 litres of diesel.  It was submitted for appellant that no wrongful conduct on his behalf was established.  On the other hand respondent contended that appellant’s conduct constituted gross negligence in terms of the code of conduct S.I. 67 of 2012.  In its notice of response respondent stated that appellant had a duty not to accept and sign for the product if he noticed any anomalies.  Further in the minutes of the hearing of 3 February 2016 it is stated on page 82 of the record

“Mr Kanemunhenga was asked why he did not use the report card issued every trip to record these problems and also why he had registered no protest with the shortages at the point of delivery instead of signing his acceptance of the shortages.”

No response to this question is on record.  It appears that the response given by the appellant’s representative that there were no standing instruction on that aspect is an after thought.  If that were the case appellant would have raised it in response to the question during the proceedings of 3 February 2016.  Mr Phiri for the respondent submitted in oral submissions that if for any reason a driver is not happy with what has transpired instructions are not to sign as signing confirms that what has transpired is above board.  Mr Gumbira for respondent did not dispute this or comment on it in his reply to the submissions for respondent.  His comment that there were no standing instructions came after the court had insisted on a response to that submission.  I therefore find that appellant was aware that he should not sign where discrepancies had occurred.  His signature in the circumstances of this case is therefore an act of gross negligence.  In Merchant Bank of Central Africa v James Dube SC 6/04 it was stated that an entire failure to give consideration to the consequences of one’s actions or omissions, or a total disregard of one’s duty would constitute gross negligence.  The Chief Executive Officer’s decision to confirm the findings of the disciplinary committee cannot be impugned.

The appellant’s actions in the circumstances fell far short of what the employer expected of him.  The employer adjudged his performance to be of a sufficiently serious degree below the expected standard to warrant the misconduct charges preferred against him.  The seriousness with which the misconduct is viewed is generally the prerogative of the employer.

It is therefore futile for appellant to argue that a lesser charge should have been preferred.  In appellant’s view he should have been charged with “ordinary negligence”, not gross negligence.  A person subject to misconduct charges cannot dictate which charge to be preferred against him.  Where an employer has exercised its discretion, the courts are normally hesitant to interfere unless it is shown that there was gross unreasonableness, caprice or malice .  See S v Nhumwa SC 40/88.  No caprice or malice has been demonstrated in this case.  Appellant has not shown that the employer exercised its discretion in a grossly unreasonable manner.  No basis has therefore been laid for this court to interfere with the employer’s discretion.

Appellant complained of the null and void final written warning he was alleged to be sitting on.  The findings of the Disciplinary Committee show that his complaint was upheld.  The committee however stated that even without the final written warning, the charge carries a penalty if dismissal in the first instance.  It was  therefore not necessary for appellant to raise this issue on appeal as respondent conceded in the hearing a quo.

Appellant also complained of the quantity of the shortfall alleged.  In my view it is immaterial whether 801 litres or 435 litres were in issue.  The accepted position is that there was a shortfall and appellant did not alert his employer of any problems leading to the shortfall.

In the final analysis I find no merit in the appeal and it cannot succeed.  Consequently the following order is appropriate.

The appeal be and is hereby dismissed for lack of merit.