Emmanuel Kadzombe v Isquant Investments/Zimoco

### Preamble
IN THEN LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/593/16
HELD AT HARARE 27 JULY 2016
CASE NO
JUDGMENT NO LC/H/593/16
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IN THEN LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/593/16

HELD AT HARARE 27 JULY 2016				CASE NO LC/H/267/16

& 23 SEPTEMBER 2016

In the matter between:

EMMANUEL KADZOMBE				Appellant

AND

ISQUANT INVESTMENTS/ZIMOCO			Respondent

Before The Honourable Chidziva, J

For Appellant			C Mahlangu (Legal Practitioner)

For Respondent		C Kwaramba (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the respondent’s Appeals Officer that was delivered on 31 October 2014.  The Appeals Officer upheld the decision of the hearing committee to dismiss the appellant for the alleged misconduct.

The brief history of the matter is that

Appellant was employed by the respondent as an auto electrician with effect from 1 April 2012.

On 26 September 2014 he was charged for an act of misconduct in terms of the Collective Bargaining Agreement for the Motor Industry Code of Conduct for “any act or omission inconsistent with the fulfilment of the express or implied condition of the contract of employment.”  It was alleged that he being one of the employees who was working on the Lamsden MB GL 350 ACI 5000 on 18 September 2014 a number of components of the SRB system detonated causing extensive and expensive damage.  It was also alleged that the damage was as a result of his negligence and failure to carry out duty in a proper manner.

A disciplinary hearing was conducted on 1 and 2 October 2014 and he was found guilty.  He was dismissed from employment with effect from 20 October 2014.

On 22 October 2014 he appealed against the determination and penalty through his then representative the Automotive and Allied Workers Union of Zimbabwe.

The appeal was dismissed and appellant has appealed to this court against the Appeals Officer’s determination.

The grounds of appeal are as follows

There was no evidence established by the respondent on a balance of probabilities that appellant had been guilty of an act, conduct or omission inconsistent with the fulfilment of the express or implied condition of his contract of employment with respondent.

The conviction of the appellant cannot stand as it was based on an incompetent reversal of onus to the appellant to prove his innocence and on the consequent  finding that since the appellant could not prove otherwise, he was guilty of an offence which had not been established on the facts by the respondent.

The exercise of punitive discretion by the respondent was grossly inconsistent with all known law such that it ought to be interfered with on appeal.

The appellant therefore prayed that

the appeal be allowed

the appellant be reinstated without loss of salary and benefits

alternatively that parties shall negotiate damages in lieu  of reinstatement and if reinstatement is no longer tenable and in the event of failure to agree either party shall approach the Labour Court for quantification.

The respondent in response told the court that

the evidence relied upon in arriving at the conclusion proved on a balance of probabilities that in more than one way the appellant had failed to act in a manner consistent with the standards expected of an auto-electrician.

The onus was on the appellant to show that even though he had custody of the car and was working on the electric side of the car, someone else had tempered with the car thereby causing the explosion.

Indications that George Nyarambi was seen standing outside the car do not sufficiently exonerate the appellant.

Appellant did not leave the keys with anyone in particular.

As an electrician he was employed to make sure that all repairs of an electric nature are sorted by him but in this case he failed.

The value of the damages caused by the omission is around $90 000 and his omission has exposed the employer to a serious financial loss.

The appeal is without merit and must be dismissed with costs.

It is common cause that

The detonation was caused by an electrical problem.

George Nyarambi and the appellant were the two (2) people working on the motor vehicle at that particular time.

George Nyarambi was doing the trimming while appellant was working on the electrical side of the problem.

One of the causes of the detonation was that the crash control sensor was not fitted properly and it reacted to the banging of the door

What is to be decided is whether

There was evidence to prove appellant’s guilty on a balance of probabilities.

The appellant’s conviction is competent as it was based on the fact that he should have proved his innocence.

The exercise of punitive discretion by the respondent was grossly unreasonable.

Whether there was evidence to prove appellant’s guilty on a balance of probabilities

In civil matters the burden of proof is discharged as a matter of probability.  The standard is therefore proof “on an  balance of probabilities.”  The case of Trasvaal Provision Divisiion in Maritime & Eng (Pvt) Ltd Co Ltd v Sky Unit Eng (Pvt) Ltd 1989 (10 SA 867 at p 887 the principle was described as follows;

“That is a difference between the proof requisite in civil and criminal proceedings R v Blom supra was a criminal case, and in my opinion it is a fallacy to suppose that the second principle in Blom’s case represents the minimum degree of proof required in a civil case, it seems to me that one way, as Wigmore conveys in his work on Evidence 3 ed paragraph 32 by balancing probabilities select a conclusion which seems to be the more natural or plausible conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one.”

BARTLET J in the case of Ebrahim v Pittman N O 1995 (1) ZLR 176 at p 185 described this principle as follows

“I should also point out that in another case referred to by Mr Gillespie A A Onderlinge Assuransie – Associasie Bpk v Dr Beer supra which is referred to in the quotation I have already made, it was again emphasised that it is not necessary for a plaintiff invoking circumstantial evidence in a civil case to prove the inference which he asked the court to make the only reasonable inference.  He will discharge the onus which rests on him when he has convinced the court that inference he advocates is the most readily apparent and acceptable inference from a number of possible inference.”

To start with when the (2) two  men were working on the car the appellant was the electrician appellant did not dispute that he was the last person to drive the car.  Furthermore after the detonation it was also discovered that the key had been left on the  ignition.  It is also the presence of the key in the ignition that caused the explosion.  He could not prove that someone else tempered with the vehicle.  Even if someone tempered with the vehicle he is the one who had left the key without leaving it to anyone in particular.  This therefore meant that anyone could enter the car, temper with it and cause the detonation.

If appellant left the key on the dashboard as he said it also means that he exposed the car to what later happened that day.  He ought to have protected the vehicle from all possible damages.  Even if George had entered the vehicle and put the key on, the appellant would still not escape liability.  Appellant should have known that the vehicle was in a sensitive state and should not have made it easy for anyone who got to the car, open it  and ignite it.

As an electrician he should have known all the electrical dangers associated with the repairs that were being done.

Furthermore one of the causes of the detonation was that the crash control sensor was not fitted properly and it reacted to the banging of the door.  Someone could have caused the detonation by opening and closing the vehicle door as long as the key was in the ignition.  Appellant only can be blamed for leaving the key on the ignition on the car because he is the one who last drove the vehicle.

If the detonation was caused by a crash control sensor which was not properly fitted the appellant still remains responsible.  He was employed to sort out all electrical issues on the vehicle.

From all this the probability of the matter pointed more to the appellant’s negligence than to George Nyarambi.  It is these probabilities and evidence that led the appeals authority and this court to conclude that appellant was liable.

Whether the onus was on the appellant to prove his innocence

The appellant in his submissions started that appellant did not have the onus to prove his innocence.  Instead the respondent who had charged the appellant was supposed to prove that he is guilty.  A case in point that the appellant quoted is ZCTU & Ors v Nkiwane & Ors HH 462/15 where it was stated that

“It is trite that in civil proceeding s a party who makes a positive allegation bears the burden of proving such an allegation.”

In the case of Astra Industries Ltd v Peter Chamburuka SC 27-12 the court also held that

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation ---. In other words he who seeks a remedy must prove the grounds therefore.”

In this case all the evidence pointed to the fact that appellant was guilty of the misconduct.  Lord Denning in the case of Milner v Minister of Pensions 1947 2 ALL ER 372 at p 374 stated that

“It must carry a reasonable degree of probability but not so high as is required in a criminal case.  If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged but if the probabilities are equal it is not”

In this case what was more probable was that appellant committed the offence.  In the absence of any other convincing contrary evidence the appellant is guilty of the omission or commission.

Whether the exercise of the punitive discretion by the respondent was grossly unreasonable

The appellant has also submitted that the penalty imposed in this case is grossly unreasonable and no other reasonable court would have arrived at it.

In the case of National Foods Ltd v Masukusa 1994 ZLR 160 (S) 69 it was held that

“For a person to be convicted of committing any act or omission inconsistent  with the express or implied conditions of his contract of employment the conduct complained of must be such as to show that the employee disregarded the essential conditions of his contract of service, express or implied to the extent that the substratum of employer-employee relations was destroyed.”

In the case of Robb v Green (18950 2 QB at 10-11) the court held that

“In the absence of any stipulation to the contrary, there is involved in every contract of service an implied obligation, call it by what name you will, on the servant that he shall perform his duty especially in these essential respects, namely that he shall honestly and faithfully serve his master.”

In the case of Angehrn & Pielv Federal, Storage Co Ltd 1908 TS 761 at 780 the court held that

“A duty not to conflict wanton or unnecessary injury upon an employer or ---.  To engage in conduct which is prejudicial or is likely to be prejudicial to (the employer’s) interests or reputation.”

The appellant was supposed to make sure that all electric reports were sorted by

him. He owed his employer a duty of care in executing his duties.  However due to his negligence respondent has been exposed to a serious financial loss estimated to be around $90 000.  This conduct is likely to be prejudicial to the employer’s interest and reputation.

In view of the foregoing this court finds that the appeal lacks merit.

Accordingly I order as follows

The appeal be and is hereby dismissed with costs.

Munyaadzi Gwisai & Partners, appellant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners