Febby Taderera V Zimbabwe United Passenger Company LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/667/16
HELD HARARE 20 JUNE 2016
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/667/16

HELD HARARE 20 JUNE 2016				CASE NO LC/H/218/15

& 4 NOVEMBER 2016

In the matter between:

FEBBY TADERERA							Appellant

And

ZIMBABWE UNITED PASSENGER COMPANY LTD		Respondent

Before The Honourable Manyangadze, J

For Appellant 		N R Gwande (Trade Unionist)

For Respondent		Ms A Mapanzure (Legal Practitioner)

MAN YANGADZE J:

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

The facts of the matter are largely common cause.

The appellant was employed by the respondent as a bus conductor.  On 9 February 2015, she was the conductor in a bus travelling from Harare to Malawi.  The bus had departed from the Road Port station in Harare, destined for Malawi.  On nearing Mutoko, about 135 km from Harare, the bus was intercepted by inspectors.  The inspectors discovered that 5 passengers aboard the bus had no tickets.  The inspectors had to collect the money for the bus fare from the passengers, which amounted to US$95.00.

The appellant was charged with misconduct, in terms of the respondent’s Code of Conduct.  The charge was gross negligence.  The respondent’s Disciplinary Committee found her guilty as charged, and imposed a penalty of dismissal.  The internal Appeals Authority upheld the Disciplinary Committee’s determination, prompting the appeal to this court.

The grounds of appeal are rather lengthy and inelegantly drafted.  However, two basic issues can be gleaned from them;

The Disciplinary Committee was improperly constituted.

The appellant was not negligent as she fell ill along the way, and was therefore unable to issue tickets to the 5 passengers as required.

On the first issue, the respondent contended that the appellant was bringing a

review issue on appeal.  At the hearing of the matter the appellant conceded this issue was one for review.  Mr Gwande, the trade union representative who appeared on behalf of the appellant, however pointed out that he accepted this position in principle only.  He explained that the respondent’s code of conduct has no provision distinguishing an appeal from a review.

Ms Mapanzure, for the respondent submitted that the procedure for filing an appeal and/or review in the Labour Court is governed by rules of the Labour Court.  These are rules 15 and 16 of the Labour Court Rules, Statutory Instrument 59 of 2006.  The procedure is not governed by the respondent’s Code of Conduct.  I am in agreement with this submission.  If appellant wanted to apply for a review of the disciplinary proceedings, she should have proceeded as provided for in the appropriate rules, viz the Labour Court Rules.

Even if it were to be accepted, for some reason, that the point being raised by the appellant is appealable, it is devoid of merit.  This is for the simple reason that the appellant was asked, at the disciplinary hearing, whether she was satisfied with the composition of the Disciplinary Committee, and she said yes.  The minutes of the disciplinary hearing record as follows:

“The chairperson welcomed everyone and introduced the disciplinary committee members to the defendant and complainant.  The chairperson asked the defendant if she was satisfied with the composition of the hearing panel and she said yes.  The chairperson asked the defendant if she had a charge sheet and if she had received the hearing notification in time and she said yes she had.  The defendant was comfortable to use Shona language during the proceedings.”

So, it was only after the Disciplinary Committee got an assurance from the appellant that she had no issues with its composition or other procedural aspects, that it proceeded to hear the matter.

In the circumstances, the appellant’s averment that the disciplinary committee was improperly constituted cannot be upheld.

On the merits, the basic facts of this matter are common cause.  Five passengers, who boarded the bus at Road Port, Harare, were not issued with tickets.  This was contrary to the respondent’s Operations Department Procedure Manual.  On the selling and issuing of tickets, the manual provides, under section 2.6.2.

“Ticket selling/issuing

Writes and issues valid tickets to all passengers on board and all luggage carried as per fare table and luggage fair list.

Fills in waybill and drops or records ticket book or machine readings at all stipulated fair stages on the waybill.

Ensures that revenue targets in line with the scorecard are met.”

The fact that 5 passengers had no tickets was discovered at or near Mutoko, 135

km away from the departure station.

That this conduct was in contravention of the respondent’s policies and procedures, is not a matter in issue.

What the appellant endeavoured to do however, was to proffer an explanation that negatives the element of negligence.  It was to the effect that failure to issue tickets was due to illness.

The key aspects of the evidence before the Disciplinary Committee do not, in my view, sustain the appellant’s explanation.

There was no complaint of any illness at the departure point, at Road Port.  This is the point where tickets were supposed to be issued.  Infact, appellant herself said she was “too busy” on the day in question, as she also had to load some luggage.

The 5 passengers travelled all the way to Mutoko, a distance of well over 100 km, without tickets.

It was only after inspectors on routine inspection duties boarded the bus, that the anomaly was unearthed.  The passengers told the inspectors that the appellant told them to hold onto their money as she would attend to them later.

The appellant refused to hand over the ticket book to the inspector.  One of the inspectors had to wrestle the appellant’s ballpoint pen away from her.

The inspectors had to collect the bus fare themselves, of US$95.00, from the 5 passengers who had not been issued with tickets.

The appellant had told no one that she was not feeling well.  Mr Mapasure, the inspector who gave evidence before the Disciplinary Committee, told the committee;

“If she had told us that she was sick we could have escorted the bus and let her return home.”

It was on the basis of this evidence that the Disciplinary Committee found the appellant guilty as charged.

The facts established overwhelmingly militate against the appellant’s innocence.  The Disciplinary Committee cannot be faulted for relying on the evidence outlined.  It is the one that listened to, and assessed, Mr Mapasure’s evidence.  The Appeals Authority found no basis for interfering with the Disciplinary Committee’s findings, which were of a purely factual nature.  In my view, it correctly upheld these findings.  The position is well established, that an appellate court will not lightly interfere with the factual findings of a trial court, unless it identifies some gross or serious misdirection.  See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (SC).

The facts shown do not reveal serious misdirection, or any misdirection for that matter, on the part of the Disciplinary Committee in returning a verdict of guilty.

The appeal against conviction must fail in the circumstances.

On the aspect of penalty, the question is whether appellant’s 11 years of service, and that there was no prejudice to the respondent as the money from the 5 passengers was eventually recovered, are factors that warrant interference with the penalty of dismissal.

The discretion to impose penalty has been held to be that of the employer.  See Innscor Africa Ltd v Letron Chimoto SC 6/12.

The court was referred to the case of Afrox Healthcare Ltd v Commission for Conciliation Mediation & Arbitrator & Others JA 37/09.

In that case, MLAMBO JP cited with approval, the remarks of CONRADIE JA  in De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation & Others (2000) 21 ILJ 105 (LAC);

“Dismissal is not an expression of moral outrage, much less is it an act of vengeance.  It is or should be a sensible operational response to risk management in the particular enterprise.  That is why supermarket shelf packers who steel small items are routinely dismissed.  Their dismissal has little to do with society’s moral opprobrium of a minor theft, it has everything to do with the operational requirements of an enterprise.”

In casu, the respondent’s Appeals Authority remarked;

“This kind of offence is regarded as very serious as this is what is bleeding the company.  The determination to terminate your contract was appropriate to   serve as a deterrent”

Given this approach by the respondent’s disciplinary authority, there is little, if any room, for interference by this court.  No misdirection has been demonstrated to justify any interference.  The appeal against penalty also fails.

In the result, it is ordered that;

The appeal be and is hereby dismissed in its entirety.

The appellant shall bear the respondent’s costs.

Chinawa Law Chambers, respondent’s legal practitioners