Doves Funeral Services (Pvt) Ltd v Webster Musarurwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/517/2016
HARARE, 5 JULY 2016
CASE NO.
JUDGMENT NO. LC/H/517/16
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/517/2016

HARARE, 5 JULY 2016			     	    CASE NO. LC/H/236/15

AND 9 SEPTEMBER 2016

In the matter between:-

DOVES FUNERAL SERVICES (PVT) LTD			Appellant

And

WEBSTER MUSARURWA					Respondent

Before Honourable L. Hove, Judge

For Appellant	Mr B. Vito

For Respondent	Mr S. Chirinda (Trade Unionist)

HOVE, J:

This is an appeal against the decision of the Appeals Committee of the National Employment Council for the Commercial Sector which found the respondent not guilty of the allegations of misconduct that he was facing.

The facts are largely not in dispute.  The Respondent was driving the appellant’s vehicle when on 14 April 2014 at about 0530 hours he was involved in an accident along the Chitungwiza road.  The appellant overshot the roundabout and hit the Kerb.  He caused damage to his employer’s vehicle in that both right-side tyres of the vehicle were damaged.

The respondent’s speed before the accident was 79 km per hour as recorded by the vehicle tracking system fitted to the vehicle.  The speed limit on that section of the road was initially 60 km per hour but it reduced to 40km per hour upon approaching the round about.  There was also a “detour” warning sign and grids at approaching the round about warning motorists of the hazard ahead.

The respondent stated that he did not see any of the warning signs due to the tall grass and the fact that he was in the inner lane.  The employer conducted an inspection in loco and it was established that the road signs were clearly visible.  It was also noted that the vehicle lights were in good working conditions and the respondent had no eye sight problems.

The record shows that the respondent admitted to negligence.

The Appeals Committee however found him not guilty on the basis that the employer had not proved that in being involved in the accident, the respondent had acted willfully and intentionally.  That is that the respondent had not deliberately willed to get involved in the accident and no proof was shown that he had acted with the intent to cause the accident.

The Appeals Committee took that approach because they said that the charge preferred against the respondent read:

“Misuse of employer’s property: willful or intentional loss/damage of employer’s/customer’s property regardless of the value of such property.”

So they reasoned that the employer had to prove that the respondent had acted willfully and intentionally.

The employer appealed to this court against that decision and argued that the Appeals Committee had erred in coming to a finding of not guilty.

That the Appeals Committee misdirected itself is clearly evident.  The respondent with full knowledge of the fact that he ought to have driven with due care and attention, drove without the standard of care expected of a driver.  He failed to observe the road signs and the speed limits.  He ought to have taken more care if there were tall grasses and it was early morning but he gives the excuse that he failed to observe the warning signs because he was in the inner lane.  Road signs are not meant to warn those in the outer lane but all drivers.  He failed to break and reduce speed when he drove over the grids.  He was negligent in his driving.

Wilfulness occurs when a person with full knowledge of the need to exercise due diligence on the roads, disregards the road signs and other warnings and takes risks ignoring the possible consequence and makes the decision not to be duly diligent.

Willfulness is seldom, if ever clear cut.  There is almost always an element of negligence and the question is was the respondent grossly negligent?  If the negligence was gross then it amounts to willfulness.

The appellant proved that the respondent was grossly negligent, he ignored the warning signs and the speed limits and drove straight into a round about at almost double the regulated speed limit.  That was clearly negligent for any driver but also grossly negligent for a professional driver.

Willfulness was therefore proved and the Appeals Committee misdirected itself by finding otherwise.

This court has the right to interfere with the exercise of discretion of the appeals body because, as was stated in Attorney General v Howman 1988 (2) ZLR 402 that;

“It is trite that an appeal court will not interfere with such exercise of discretion unless such exercise has been afflicted by a serious misdirection which makes nonsense the decision to grant the discretion in the first place.”

I’m of the firm view that in this case there was a serious misdirection as stated above and this appeal court, for that reason can interfere with the decision of the lower “court”.

In the result, I make the following order;

The appeal is upheld.

The decision appealed against is set aside.

The respondent is found guilty and dismissed from employment.