Ephraim Machingura v Delta Beverages (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/207/2021
HARARE, 21 JULY 2021
CASE NO LC/H/133/20
AND 05 NOVEMBER 2021
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/207/2021

HARARE, 21 JULY  2021			                  CASE NO LC/H/133/20

AND 05 NOVEMBER 2021

In the matter between: -

EPHRAIM MACHINGURA			APPELLANT

AND

DELTA BEVERAGES (PRIVATE) LIMITED	RESPONDENT

Before the Honourable Manyangadze  J

For the Appellant			Mr E. Maponga (Trade Unionist)

For the Respondent			Mr T. Pasirayi (Legal Practitioner)

MANYANGADZE, J:

This is an appeal against the determination of the respondent’s Works Council, which upheld the dismissal of the appellant from employment.

The factual background to the matter, briefly outlined, is that the appellant was at the material time employed as a Boiler Operator. On 18 September 2020, he was on duty at the boiler section, operating Boiler Number 2.  The boiler had low levels of water when it was being operated. As a result, it overheated and collapsed.  The damage cost the company   US$120 000 in repairs.

An investigation into the failure of the boiler revealed that crucial mandatory safety checks had not been carried out.  The checks included what is described in the papers as the “mobreys” and “water gauge blowdowns.”  It was found that the selector switch was in the “OFF” position when it should have been in the “ON” position.  This meant that there was no water supply from the water pump. This resulted in the boiler running out of water and collapsing, causing the expensive repairs.

As a consequence, the appellant was charged with misconduct in terms of the Delta Beverages Employment Code of Conduct (2003). (Code of Conduct.  The specific misconduct charge was:

“Failure to exercise proper care and regard to the manner of discharging duty to the extent that tasks have to be repeated or equipment or persons are at risk of damage or injury, or negligent driving or driving in such a manner that damage may be caused to property or injury to any person.

Negligence

An employee is negligent if he does not take reasonable care in the performance of his job to avoid acts or omissions, which he can reasonably foresee, would be likely to cause loss or damage or injury.”

The initial disciplinary hearing was conducted  at the Immediate Supervisor Level (Hearing Committee) in terms of the code of conduct.  The Hearing Committee found the appellant guilty as charged, in a determination issued on 15 October 2020.

An internal appeal to the Head of Department (Appeal Committee) was dismissed on 23 October 2020.

The appellant further appealed to the Works Council, the final level in the respondent company’s internal appeal process.  In a determination issued on 7 November 2020, the Works dismissed the appeal in  its entirety. The appellant then approached this court.  His grounds of appeal are stated as follows:

“ 1.	The Works Council grossly erred at law by failing to consider that, the Appellant was not trained to do the duties of boiler operator as required in the Factories and Works (Boiler) Regulations, RGN 279 of 1976.

The Works Council grossly erred at law in their findings that, the Job Description produced during the hearing, the Appellant was on job training.

The Works Council grossly erred at law by disregarding the alarming/harmful defects which were recorded in the logbook prior to the incident.

The Works Council grossly erred at law by failing to observe that the circumstances arising naturally from acts and/or omissions were caused by incompetence of the immediate superior or Head of Department.”

The first two grounds of appeal are concerned with the same issue.  It is the averment by the appellant that he was not trained to do the duties of a boiler operator. What the appellant is basically saying is that he should not be held liable for consequences that arose from a job for which he received no training and for which he was not qualified.

In countering this submission the respondent averred that the record shows that the appellant received on the job training and was well versed with the duties of a boiler operator. In paragraphs 9 – 11 of its heads of argument, the respondent submits;

“Despite not holding a certificate as a Boiler Operator, the appellant conceded that he trained on the job to do the duties of the Boiler Operator.

The appellant had gained substantive experience of over 11 years on the job as a Boiler Operator and signed an appointment letter on 20 May 2009 confirming his job description as a boiler operator.

Despite his extensive experience as a Boiler Operator and being well aware of his duties, the appellant left the Boiler unattended and failed to check water levels for the boiler resulting in the boiler running out of water, overheating and failing.”

These averments are in line with findings made by the Works Council, the Appeals Committee, and the Hearing Committee.  The findings by these tribunals are borne out by the facts on record.  Initially, the appellant downplayed the aspect of his training, saying he had 5 years on the job training and had signed no documents for boiler operator duties. This is seen on page 4 of the minutes of the Hearing Committee, paragraphs 62 – 66.

However, on page 12 of the same minutes, the appellant is presented with evidence of a job description he signed in 2009, for boiler operator duties. That makes a period of 11 years on the job, instead of the 5 years he had mentioned.  He was obviously not being truthful with the tribunal when he stated 5 years.  He could not conceivably mistake 11 years for 5 years.  He was deliberately reducing the period he had worked with boilers. Thus, the tribunal of first instance found that the appellant had extensive experience in the operation of a boiler, spanning 11 years. This finding was upheld by the subsequent tribunals, namely the Appeal Committee and the Works Council.

Given the facts on record, these tribunals cannot be faulted for making and upholding that finding. In the circumstances, the contention that the appellant lacked training cannot be upheld.  Grounds of Appeal 1 and 2 cannot therefore succeed.

Grounds 3 and 4 essentially seek to shift the blame on the appellant’s supervisors. The gist of appellant’s averment is that the boiler in question had defects which they failed to rectify. Put differently, the appellant is alleging that he was forced to operate a defective boiler.

What is significant to note is that in these grounds of appeal, the appellant is conceding there were defects on the boiler. The defects were so serious that he himself describes them as “alarming/harmful.” What is baffling about this averment is that on the previous day, that is 17 September 2020, the boiler functioned without any problem.  Some defects were noted, reported and rectified.  In this regard, the respondent averred, in paragraphs 4.6 – 4.8 of its Opposing Affidavit;

“The appellant failed to carry out mandatory checks before utilizing the boiler resulting in him failing to observe that the water pumps were switched off. The appellant conceded that he failed to carry out mandatory Mobrey functionality checks for safety before utilizing the boiler.  The appellant con ceded that he failed to do blow downs during the day.

The appellant conceded that he proceeded to use the boiler despite being fully aware that it had various defects that needed rectification as noted on the logbook in circumstances where he failed to bring these issues to the attention of his supervisor as he had done on 17 September 2020.” (underlining added)

It seems to me the appellant simply failed to carry out some basic checks at the time, which could have prevented the boiler from overheating and consequently collapsing. Critical among these checks was the monitoring of the water gauge. According to findings made by the internal tribunals, this could have been done visually.  Among the averments made in the charge letter, the following is quite pertinent;

“You did not execute visual monitoring of water gauge because if you had done so, you would have seen that the water had run out as then found out at 1730 hours. You had to be alerted by a team from Maintenance department (K. Chanhuwa and G. Muza) of the emptiness of the boiler in terms of water.  The gauge glass showed no water at that time too.”

So, had the appellant monitored the water level in the water gauge, even visually, he could have observed that the water level was low, and taken remedial action to avert the overheating and collapse of the boiler.  This was no herculean task requiring sophisticated training. It did not require his supervisors to come to the factory floor to do that.  He was the one on the spot, and it was well within his ability to attend to the situation.  In this regard, the Hearing Committee remarked;

“The time you have worked in the company is overridden by the fact that a boiler is a high pressure vessel., to which the most common hazard that can lead to accidents is low water levels, this can lead to explosions with high causalities within the plant and outside the plant.  Your failure to conduct all the necessary safety checks when running the boiler compromised the safety of not only you but your colleagues and other people close to Harare Brewery Plant.  You have 11 years’ boiler operating experience and you are aware of the risks associated with boiler failure.” (underlining added)

Reference to Munyaradzi Gwisai’s book Labour and Employment Law in Zimbabwe, in paragraph 4 of respondent’s heads of argument, was apposite. It is submitted in that paragraph;

“In M. Gwisai, Labour and Employment Law in Zimbabwe at page 107, Negligence is defined as a situation whereby an employee is aware of her/his duties and is capable of performing them but for no good reason she/he does not or does them in an incorrect way because of lack of application or concentration.”

In my view, the facts of the matter are such that the Works Council cannot be faulted for upholding the Appeals Committee’s decision, and the Appeals Committee for upholding the Hearing Committee’s decision.  The Appellant was properly found guilty of negligent performance of duty, as defined in the Code of Conduct.

I note that none of the 4 grounds of appeal address the question of penalty.  It means the appeal was against the verdict, and not the penalty. The court cannot therefore venture into the question of the propriety or otherwise of the penalty, which the appellant did not raise in his notice of appeal.

The respondent has asked for costs on the higher scale of legal practitioner and client.  The appellant simply argued his case and failed. I did not detect any abuse of court process to warrant the punitive scale of costs.  It is my considered view that costs remain on the ordinary scale.

In the result, it is ordered that;

The appeal be and is hereby dismissed,

The appellant bears the respondent’s costs.

Gill, Godlonton & Gerrans, Respondent’s Legal Practitioners