Ivan Muremeredzo v Delta Beverages (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/152/2024
HARARE, 26 MARCH, 2024
CASE NO LC/H/564/23
5 APRIL 2024
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IN THE LABOUR COURT OF ZIMBABWE HARARE, 26 MARCH, 2024

5 APRIL 2024

JUDGMENT NO LC/H/152/2024 CASE NO LC/H/564/23

IVAN MUREMEREDZO	APPELLANT

DELTA BEVERAGES (PVT) LTD	RESPONDENT

Before the Honorable G. Musariri, Judge:

For Appellant	- Mr I. Muremeredzo, Appellant

For Respondent	- Mr K. Ncube, Attorney

MUSARIRI, J:

Appellant (employee) appealed to this Court against his dismissal from employment by respondent (employer). The appeal was made in terms of Section 92D of the Labour Act Chapter 28:01 hereafter called the Act. The employer opposed the appeal.

The grounds of appeal were six-fold as follows;

“1. The respondent erred and misdirected itself by failing to consider that the appellant had been instructed by his supervisor to embark on the fateful trip despite having exceeded the maximum permissible daily hours. This resulted in the respondent failing to consider that the accused had a good defence provided by Section 13(2)d of the Delta Beverages Code of Conduct.

The respondent erred and misdirected itself by failing to consider the Vehicle Care Committee’s findings of the immediate cause of the accident thereby arriving at the grossly incorrect conclusion of the facts.

The respondent erred and misdirected itself by charging the appellant with a charge arising from a Standard Operating Procedure which he was never inducted and was only given a copy two months after the accident.

The respondent grossly erred and misdirected by making a finding of fact that the vehicle damage was very serious despite clear evidence to the contrary. A proper consideration of the facts should have resulted in the lesser charge of breaching Section 5 subsection 5.4 of the classification of offences of the code which deals with minor damage.

The respondent erred and misdirected itself by failing to consider the mitigating factors surrounding the commission of the offence and thus arrived at an inappropriate sentence.

The respondent erred and misdirected itself by upholding the sentence of dismissal under the mistaken belief that a lesser penalty could (not) be given when one is convicted of a dismissible offence.”

These grounds of appeal raise basically 3 (three) issues which shall be dealt with ad seriatim.

Whether the guilty verdict contradicted

the instruction given by the employee’s immediate superior, and

the findings of the Vehicle Care Committee (VCC):

The employee stated that he was instructed by his immediate superior to drive the vehicle well knowing he had exceeded the maximum daily hours. The instruction supposedly led to the accident he was involved in whilst executing lawful instruction. The employer countered that this was a new defence raised for the first time in this Court. In the hearing by the Works Council (WC) which he challenges the employee never raised such defence but in fact contradicted such defence. This is what he said at the 1st hearing at the Immediate Superior Level.

“67. IM Not possible. Chimanga asked if I was sick or if I was drinking any pills. And I told him, I was not sick and wasn’t taking any pills and could proceed with the journey.”

This shows that the tiredness defence was not the employee’s case right from the first hearing. He sought to argue that the defence was a point of law which could be raised from the first time on appeal. However though camouflaged as a point of law, the defence is based on tiredness arising from working excessive hours which is a matter of fact. In any event the defence is irrelevant to the charge laid which is based on negligent driving. He was not charge for obeying or disobeying lawful instructions. The charge had nothing to do with instructions.

The employee stated that he was charged despite the fact that the VCC exonerated him. Amongst other things the VCC noted the following;

“Findings

The driver was alone at the time of the accident

It was around 4am and it was dark

Driver hit two stationary vehicles from behind

Immediate Causes

The driver hit stationary vehicles

The driver alleges he was fatigued (driver had been on duty for 20 hours)

There were no warnings to show that there were vehicles on breakdown ahead of the driver

It was dark and the vehicle was on a gentle curve

The two third part vehicles were not pulled fully off the road Recommendations

The case is referred back to the Immediate Superior.”

The report noted that the employee’s truck hit two stationary vehicles from behind. That is prima facie proof of negligence. A reasonable driver going at a safe speed in the circumstances should have seen the vehicles parked by the road. All the VCC did for the employee was to hint that his failures were caused by driver fatigue. Clearly the VCC report does not absolve or clear him apropos the charge of negligent driving.

Whether the charge was appropriate considering that

The charge was based on a Standard Operating Procedure (SOP) which was unknown to the employee,

The employer’s vehicle sustained minor damage:

The argument about the SOP is a red herring. The charge emanated from the employee’s negligent driving. The charge is provided in the applicable Code of Conduct as follows;

“12 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 danger or injury.”

The Code’s definition of “negligence” does not cite or depend on the SOP. Further the charge laid does not refer to the SOP. As regards the extent of damage to employer’s vehicle the definition of the offence does not refer to ‘minor’ or ‘major’ damage. Instead, it simply refers to ‘loss.’ The penultimate paragraph to the charge letter stated that the employer “lost an amount of $ZWL 1, 671, 503, 03 for repairs to the damaged truck.” That loss is covered by the charge.

Whether the penalty of dismissal was excessive:

The employee relied on Clause 5.2 of the Code which reads;

“5.2 In general, disciplinary action should, in the first instance, be educational and then corrective. Punitive action should be taken when the earlier steps have proved ineffective.”

The employee argued that as a first offender he was a suitable candidate for corrective rather that punitive action.

Per contra the employer argued that the Clause 5.2 itself states that it applies ‘in general.’ That means it allows room for exception to the rule. In any event the position has been settled by case law such as,

Celysis v Ndeleziwa 2015(2) ZLR 62(5)

Per Gwaunza DCJ at P 65F

“The law is settled that in circumstances where an employer takes a serious view of the employee’s misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question.”

This Court or any court can only interfere where the penalty amounts to abuse of an employer’s discretion. In casu the employee undermined the mitigatory effect of “his exhaustion” considering he assured his superior that he could “proceed with the journey.” Were it that he had protested but his superior insisted on him taking the journey, the situation might be different.

Conclusion

It is concluded that appellant failed to substantiate his grounds of appeal. Therefore, the appeal ought to be dismissed as devoid of merit.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

J-U-D-G-E