Kajah Ndimo v Pioneer Transport (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/448/14
HELD AT HARARE 2ND JULY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	         JUDGMENT NO LC/H/448/14

HELD AT HARARE 2ND JULY 2014			CASE NO LC/H/200/14

& 18TH JULY 2014

KAJAH NDIMO						Appellant

PIONEER TRANSPORT					Respondent

(PRIVATE) LIMITED

Before The Honourable G Musariri, Judge

For Appellant		Mr C Chigwada, Unionist

For Respondent		Ms T Mashiri, Assistant

MUSARIRI, G:

Appellant worked for Respondent as a Truck Driver.  He was charged with misconduct.  A hearing was held.  On 19 December 2013 a disciplinary committee (DC) found him not guilty.  The complainant appealed.  On

14 January 2014 Respondent’s Managing Director (MD) allowed the appeal.  He set aside the determination of the DC and proceeded to dismiss Appellant.  The latter then appealed to this Court against his dismissal.  The appeal raised both procedural and substantive issues.

Procedure

Appellant argued that the complainant’s appeal to the Managing Director made out of time.  The facts on record however belie that contention.  The Disciplinary Committee’s determination is dated 19 December 2013.  The complainant’s appeal is dated 24 December 2013.  It was common cause that the applicable Code provided for such an appeal within five (5) days.  Even without excluding weekends or holidays, the appeal was filed on the last day that is the fifth day.  It follows therefore that this argument was misconceived.  In any event procedural issues cannot be raised in an appeal.

Merits

Appellant’s grounds of appeal stated the following;

“The Respondent through the Managing Director is largely misguided in maintaining that there was an issue of having to go off route.  Yet in the minutes of the 16 December 2013 on page 4 the company witness mentioned that the truck was parked 20 – 30 m from the road,…

The Respondent through the Managing Director failed to observe from the minutes that the real issue here was the belief by private investigators that when they saw the truck perked at the layby the intention was to siphon diesel, and when they realised that it was not the case, everything which transpired after was but a witch hunt expedition.”

Filed of record is a report dated 29 November 2013 made by Respondent’s Operators Manager (OM).  The relevant portion reads thus,

“Today 29 November 2013, in early morning hours, driver K Ndimo who was en-route to Johannesburg South Africa diverted route at Southdale Service Centre along Masvingo road approximately 50 km from Masvingo, for a kilometre from the main road.  No communication has been made by the driver to either operations department or workshops to report an anomaly on the truck or trip or to express his intentions to act in such a manner.  After this incident I talked to Driver Ndimo who advised me that he wanted to fix the vehicle which had developed a fault and that’s the reason why he went off route.  He indicated that the truck had wheels binding.  I checked with workshop and no report had been made to workshops.  He further loosened the brakes on his vehicle to support his case.  The vehicle was later attended to by Swift mechanics.”

The case was triggered by an investigator who tipped OM about Appellant’s movements.  The investigator gave evidence at the hearing.  His evidence went as follows,

“. Witness mentioned that in Chaka near Masvingo they followed driver Ndimo, whom they suspected of wanting to do diesel siphoning.  They parked their car on the left side of the road because they didn’t want driver to suspect anything since they were on a mission, he mentioned that they waited for 20 minutes to see where driver was going and they noticed that driver drove to the bush, he then approached the driver and asked what he was doing in the bush and witness told driver that he is also employed by Pioneer Transport, he advised that truck was parked 20 – 30 m from the road,…

.  Witness mentioned that he confronted driver that if truck had problems why did he park in the bush.  It is at this point that he informed Mr Mupondi  (OM) that he had found a driver parked in the bush.”

The evidence shows that appellant diverted from his route.  He drove

20 – 30 m into the bush.  If the truck had mechanical problems he was required to notify Respondent’s workshop/s.  He did not do so.  If he wished to check anything he could have stopped either by the roadside or at a lay bye. Proceeding some distance into the bush betrayed an intent to engage in mischief probably to shiphon fuel as suspected.  That he was not caught in the act is neither here nor there.  Fact is he diverted from his route contrary to instructions.

In the circumstances I consider that the appeal lacks merit.  It needs be dismissed.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

The dismissal from employment of Appellant by Respondent’s upheld.

G. MUSARIRI

J U D G E