Markington Mushonga v Pioneer Coaches

### Preamble
IN THE LABOUR COURT
JUDGMENT NO. LC/H/200/2013
HARARE, 27 MAY, 2013
CASE NO. LC/H/390/2012
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IN THE LABOUR COURT 				JUDGMENT NO. LC/H/200/2013

HARARE, 27 MAY, 2013				          CASE NO. LC/H/390/2012

In the matter between

MARKINGTON MUSHONGA		-			Appellant

And

PIONEER COACHES			-			Respondent

Before The Honourable B.T. Chivizhe: President

For Appellant 	-	Mr B. Sasvikiro – Unionist

Transport and General Workers’ Union.

For Respondent	-	Mr. C. Gumbo – Legal Officer

Pioneer Coaches Legal Department

CHIVIZHE, B.T.:

The Appellant was employed by the Respondent in 2005 as an International Bus Driver.  He was dismissed from employment with effect from 17th of April, 2012 following his conviction on a charge of violating Sections 1.1 and 2.3 (Gross Negligence) of the relevant Code Statutory Instrument 94 of 1995.  The allegations were that on the 2nd of March, 2012 the Appellant was involved in an accident whilst operating one of Respondent’s buses.  The Appellant appealed to the Managing Director which appeal was dismissed.  Aggrieved the Appellant has noted his appeal against that decision with the Labour Court.

The Appellant’s grounds of appeal are rather lengthy and cumbersome.  They can however be summarized to be the following;

That the charge of Gross Negligence had been improperly leveled against him considering the minor damage to the bus and no casualties.

The Appellant should have been properly charged with ‘Negligence’ rather than ‘Gross Negligence’ and a proper penalty would have a written warning.

That the Respondent had erred in relying on the two previous Final Written Warning in order to impose a penalty of dismissal which written warnings were expired and therefore invalid.

I shall proceed to address the issues seriatim

In regards the first ground Appellant’s contention is that the charge of Gross Negligence was improperly leveled against him considering that;

there was minor damage to the bus in fact the bus managed to travel to and from South Africa after the ‘accident’

There were no casualties either in the bus or as two parties.

He had been involved in an accident whilst trying to avoid hitting a pedestrian.

The Respondent’s submission is that the charge of ‘Gross Negligence’ was properly leveled against the Appellant.  The facts as established at the disciplinary hearing showed that the Appellant had recklessly driven the bus in approaching a parking area at the Chicken Slice Complex in Mvuma.  A witness indicated the Appellant was engaged in a race with driver of another bus from the same company to reach the parking area.  He therefore failed to negotiate a traffic circle instead he cut the circle and entered the parking space at high speed.  The bus had through excessive speed then hit into a tree resulting in damage to the bus windscreen and bumper.  It was Respondent’s submission that given also Appellant’s previous disciplinary record the Appellant was properly charged with Gross Negligence.

Gross Negligence is not defined under the relevant Code of Conduct.  Although Gross Negligence is incapable of precise definition an entire failure to give consideration to the consequences of one’s actions or omissions or a total disregard of one’s duty would constitute negligence.  See the decision in Circle Tracking vs Mika Mahachi SC 4/107.

It is clear that by so driving recklessly the Appellant totally disregarded his duty to protect the Respondent vehicle.  He also risked the limbs and lives of the passengers he was carrying and of any other persons who may have been loitering in the car- park.  It was just fortuitous that no-one was injured on the day.  The bus however sustained damages to the windscreen and front bumper.  In my view the charge of Gross Negligence was clearly warranted in the circumstances.

The Appellant tendered an explanation that he was trying to avoid a pedestrian who had suddenly appeared in front.  That explanation sounds hollow.  The sequence of events as recounted by the Respondent’s witness who was on board the bus when the accident occurred sounds more credible.  When the Appellant was asked if he wanted the witness to be called during the hearing the record shows his representatives refused.  Having failed to rebuff the evidence of the witness the Appellant’s defence cannot be sustained.  The Disciplinary Committee properly found the Appellant guilty of the charge of Gross Negligence.

The Appellant has also suggested that the charge of Negligence was more appropriate.  Negligence is defined under Annexure 1 Definition of offences (page 693) under the Code to mean;

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.

Given the uncontested facts as outlined above a charge of negligence was clearly inappropriate.  The fact that there was minimal damage to the bus and that there were no casualties is not important.  The point is whether based on the facts in the record appellant was properly found guilty of the act of misconduct.  I believe he was.

The last issue raised is that Respondent improperly relied on two Final Written Warnings which had expired in order to impose a dismissal penalty.  The Respondent’s position is that even if the warnings had expired they had been raised in aggravation of penalty to show Appellant’s propensity to commit acts of misconduct.  I am satisfied that the Respondent acted fairly in the circumstances.

In the circumstances the appeal, being devoid of merits, is accordingly dismissed with no order as to costs.