Lovemore Phiri v Delta Beverages (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/116/21
HELD AT HARARE ON 15TH JUNE, 2021
CASE NO. LC/H/20/20
JUDGMENT NO. LC/H/116/21
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IN THE LABOUR COURT OF ZIMBABWE	       JUDGMENT NO. LC/H/116/21

HELD AT HARARE ON 15TH JUNE, 2021             CASE NO. LC/H/20/20

AND 27TH AUGUST, 2021			        X REF: LC/H/APP/121/20

In the matter between:-				        X REF: LC/H/ORD366/20

LOVEMORE PHIRI							Appellant

Vs

DELTA BEVERAGES (PRIVATE) LIMITED				Respondent

Before the Honourable Mhuri, J.

For Appellant		:	Mr. S. Banda (Legal Practitioner)

For Respondent 	:	Mr. P. Pasirayi (Legal Practitioner)

MHURI J.

Appellant was in respondent’s employ as a stock controller.  For a charge under category SUB-STANDARD PERFORMANCE, Appellant was charged with and found guilty of negligence for which a penalty of dismissal was imposed.

The basis of the charge was that, on the 1st of July, 2019 while on day shift, appellant dispatched a Bindura bound truck with trailer number 6849 loaded with 18 pallets of Chibuku super yet the recorded out load was 17 pallets of Chibuku super.  As a stock controller, appellant was supposed to physically check and verify the quantities in each and every truck that comes in and goes out of the brewery.  He was also to make sure that the loaded quantities are in agreement with the out load.  Had it not been for the security guard who picked up the anomaly the respondent would have lost an amount of $3 300.

Appellant’s appeals against the tribunal’s aquo’s decisions were unsuccessful, hence this appeal to this Court.

The appeal was noted on 3 grounds, to wit

that the Works Council erred and misdirected itself when it confirmed the conviction in the absence of an interrogation of his defence of conflicting instructions have been issued to the truck driver.

that the Works Council erred and misdirected itself in upholding the conviction on negligence when there was no evidence that he had not taken reasonable care in the conduct of his duties.

that the Works Council erred and misdirected itself in failing to appreciate that the dismissal penalty was so disproportionate that it induces a sense of shock.

Appellant’s prayer was worded as follows:-

“1.	that the instant appeal succeeds with cost.

that the determination of the Works Council be set aside and substituted with the following:

the appeal against the decision of the Head of Department be and is hereby allowed;

the decision of the immediate superior be and is hereby set aside and substituted with the following;

the dismissal of the appellant is hereby set aside.

The appellant be and is hereby reinstated without loss of salary and benefits.”

Respondent took issue with paragraph 2 (b)(ii) of the above prayer. Not in its notice of response, neither in its Heads of Argument nor as a point in limine at the commencement of the hearing but after appellant’s legal practitioner had finished making his submissions and at the time respondent was making submissions in response to the appeal.  Respondent’s point in limine at this juncture was that the relief sought simply prays for an order of setting aside the dismissal and reinstatement without the alternative relief of payment of damages in lieu of reinstatement.  In view of this, respondent submitted, the appeal is improperly before the Court and should be removed from the roll.

Respondent submitted that this is a material legal point which can be raised at any time.  Respondent’s legal practitioner submitted that it was an oversight on his part, he should have raised this point earlier but it was only upon perusal and re reading the appeal as he was sitted in Court listening to appellant’s submissions that he realised that the prayer was incomplete.  He relied on the case of –

HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S)

and

GIRJAC SERVICES (PRIVATE) LIMITED vs MUDZINGWA 1999 (1) ZLR 243 (S)

to support his submission that a point of law can be raised at any time.

In response to the preliminary point raised, appellant accepted that a point of law, even though not specifically pleaded can be raised at any stage of the proceedings.  He however submitted that there are principles that govern the raising of the preliminary points.  He relied on the cases of

(1)	GOLDEN DRIVEN INVESTMENTS (PRIVATE) LIMITED

vs

TEL-ONE (PRIVATE) LIMITED & ANOTHER   SC 9/2013

(2)	MUSKWE  vs  NYAJINA & ANOTHER   SC 17/12

(3)	MUCHAKATA  vs  NETHERBURN MINE 1996 (1) ZLR 153 at 157A

It was his submission that the point taken by respondent in this matter does not only cause prejudice but is unfair.  Appellant has been ambushed as the point was raised as an afterthought after Appellant had already made his submissions on the merits.  Appellant prayed that the raising of the point not be allowed by the Court.  He submitted further that the defect which Respondent has complained of is one that can be cured by an amendment, and to that end, he prayed for an amendment to his original prayer to include the payment of damages in lieu of reinstatement which damages are to be agreed between the parties and if they fail, to approach the Labour Court for quantification.

Before hearing appellant on the point raised by respondent, I directed that respondent proceeds to address me on the merits of the appeal.

It abided by its response and heads of argument and prayed that the appeal be dismissed.  It reiterated that appellant failed to put forward a defence to the charges, he failed to substantiate his allegation that conflicting instructions were issued, he abdicated his duties for reasons best known to him and that the act of misconduct he was found guilty of calls for a dismissal penalty and that respondent stood to be prejudiced of $3 500,00.

It is an established position of the law that a point of law can be raised at any time even where it has not been pleaded.

See:	GOLD DRIVEN INVESTMENTS (PRIVATE) LIMITED vs TEL-ONE (PRIVATE) LIMITED  supra in which the Court stated,

“The principles of law relating to the circumstances in which a question of law may be raised and determined in judicial proceedings are clear.  In MUCHAKATA vs NETHERBURN MINE 1996 (1) ZLR 153 (S) KORSAH JA said at 157 A;

“Provided it is not one which is required by a definitive law to be specifically pleaded, a point of law; which goes to the root of the matter, may be raised at any time, even for the first time on appeal, if its consideration involves no unfairness to the party against whom it is directed;……..”

Similarly, the position was stated in the case of

MUSKWE vs NYAJINA & OTHERS SC 17/12 to the effect that;

“Undoubtedly, a point of law can be raised at any time even though not pleaded.  However, this is subject to certain consideration, one of which is that the court has to consider whether raising a point of law at this juncture would cause prejudice to the party against whom it is raised.

In our view there is great prejudice to the appellant who, if the matter is decided against him, stands to lose the appeal without argument.”

In casu, the point was raised at the eleventh hour, i.e. after appellant had finished submissions on the merits.  He was clearly ambushed by respondent and was constrained to make any submissions in response.  It was clearly unfair to appellant and it was prejudicial to him because if the Court were to find the point well taken, appellant’s appeal would be struck off as fatally defective without any determination on the merits.

I find therefore that the point by respondent was not well taken and refuse to grant the prayer it asked for.

I will grant appellant the indulgence he sought to have the prayer amended to include the alternative of payment of damages in lieu of reinstatement.  I find support for this from the case of:

SIBONGILE NDLOVU

vs

GUARDFORCE INVESTMENTS (PRIVATE) LIMITED

And

THE REGISTRAR OF DEEDS N.O.  SC 31/21

wherein CHITAKUNYE AJA (as he then was) stated:

“It is trite that amendments to pleadings can be granted at any time before the judgment.  Whether to grant an amendment or not is within the court’s discretion.”

The defect complained of by respondent can be cured by the amendment, which amendment will not cause any prejudice to respondent.

As indicated earlier in this judgment the act of misconduct that was preferred against appellant was negligence, in that on the 1st July 2019, he dispatched a Bindura bound truck with trailer number 6849 loaded with 18 pallets of Chibuku super yet the outload recorded 17 pallets.  As a stock controller he was supposed to physically check and verify the quantities in each and every truck that comes in and out of the Brewery.  He was also to make sure that the quantities are in agreement with the outload, but he failed to take reasonable care in the execution of his duties as a result of which respondent was going to be prejudiced in the amount of

$3 300,00.

Respondent’s code of conduct defines negligence as where an employee

“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 initial Disciplinary Committee at immediate superior level found as a fact that appellant was guilty of negligence.  This finding and verdict were confirmed on appeal by both the Appeals Committee at Department level and the Works Council.  It is trite that an Appellate Court will not lightly interfere with tribunal’s aquos factual findings unless such findings are grossly unreasonable.

See 	HAMA vs NATIONAL RAILWAYS OF ZIMBABWE 1996 (1) ZLR 664 (S) at 670 C-E in which KORSAH JA aptly stated

“The general rule of the law, as regard irrationality, is that appellate court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion:”

See also the case of

ZUPCO LIMITED vs PACKHORSE SERVICES (PRIVATE) LIMITED

SC 13/17

in which Supreme Court stated:-

“The law is also settled that such findings can be interfered with where conclusions reached by a court are contrary to the evidence before the Court.”

Having gone through the entire proceedings and considering the evidence that was placed before the committees which respondent relied on, it is my considered view that this is one such case which warrants interference by this Court.

The evidence which respondent relied upon to establish negligence arose from the fact that a driver’s (Winini) truck having trailer number 6849 was found to have 18 pallets instead of 17 as recorded on the outload by security on its way out of the premises.

Appellant’s version which was not disputed was that on the day in question, he worked on trailer number 6502 which he loaded with 17 pallets and it was this trailer which was supposed to go to Bindura.  He prepared the relevant papers for this trailer.  Driver Winini by then had not yet arrived from Chitungwiza Depot.  When he eventually arrived with his truck and trailer number 6849 it was already laden with 18 pallets he instructed him to go for instructions at the S&D department where from he would then come and get the papers for the Bindura trip.  When the driver returned, appellant was elsewhere where upon the driver then collected the papers which appellant had prepared for the 6502 and he proceeded to the weighbridge on his way to Bindura, not with trailer 6502 which appellant had worked on but trailer 6849 which had just come from Chitungwiza and had not worked on.  It was his evidence that the driver did not contact appellant to advise him of the instruction he had been given at S&D, he only saw the driver driving the truck and trailer 6849 and later found the security guard waiting for him who then told him that the trailer 6849 had 18 instead of 17 pallets.

From the beginning, it was appellant’s defence that there were conflicting instructions from S&D which resulted in the driver driving out with trailer 6849.  This defence is provided for under Section 13.2 (a) of respondent’s code that it shall be a good defence to show that the act or omission complained of was occasioned through conflicting instructions.

This evidence was not controverted.  No one from S&D was called to come and rebut appellant’s assertion, neither was the driver called to come and clarify how he ended up taking trailer 6849.  I therefore agree with appellant’s submission that the Works Council erred in confirming the verdict in the absence of an interrogation of his defence on conflicting instructions.

Faced with this evidence, which was not controverted, the tribunals aquo should have given appellant the benefit of doubt and find that on a balance of probabilities, Appellant had executed his duties with reasonable care and was therefore not negligent.

The Works Council, in view of the above, grossly misdirected itself when it confirmed appellant’s verdict and dismissal.  In that regard the appeal is allowed.  To that end therefore it shall not be necessary for me to address the ground in respect of the penalty as the penalty automatically falls away.

Consequently, it is ordered that –

the appeal be and is hereby allowed with costs;

the Works Council decision confirming the tribunals aquo’s verdict and penalty be and is hereby set aside and substituted with the following:-

the appeal against the decision of the Head of Department be and is hereby allowed;

the decision of the Immediate Superior be and is hereby set aside and substituted with the following;

the dismissal of the appellant is hereby set aside;

the appellant be and is hereby reinstated to his original position without loss of salary and benefits with effect from date of dismissal;

if reinstatement is no longer tenable, Respondent is to pay appellant damages to be agreed between the parties upon failure of which either party can apply to the Labour Court for quantification.

SINYORO AND PARTNERS – Appellant’s practitioners

GILL, GODLONTON & GERRANS– Respondent’s legal practitioners