Moses Musonza v Pioneer Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/32/12
HELD AT HARARE ON 10th January, 2012
CASE NO.LC/H/279A/07
In the matter between:-
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO LC/H/32/12

HELD AT HARARE ON 10th January, 2012   CASE NO.LC/H/279A/07

In the matter between:-

MOSES MUSONZA 				Applicant

And

PIONEER TRANSPORT				Respondent

Before The Honourable L. Matanda-Moyo, President

For Applicant – Mr Chatsanga (Legal Practitioner)

For Respondent–Mr I.E.G. Masimbe (Legal Practitioner)

MATANDA-MOYO, L:

The brief facts are that Appellant was employed by the Respondent as a bus conductor. On 13th December Appellant was a bus conductor on BO11 bus from Harare to Mutare. The conductor cashed in low revenues. As a result investigations were conducted to establish the cause of such low revenues. The ticket book had Bromley tickets and the driver of the bus indicated during the investigations that his first stop was Marondera. Respondent asked for the top copies of the tickets which the Appellant failed to produce. Appellant gave the reason that such top copies were destroyed by rains whilst on the dashboard of the bus. As a result Appellant was charged with;

wilful disobedience to a lawful order given by the employer, and

gross negligence

The Appellant appeared before a disciplinary

hearing which found him guilty and dismissed him from employment.

Appellant appealed to the General Manager who upheld the findings of the disciplinary hearing. Aggrieved by that finding Appellant appealed to this Court on the following grounds;

That the hearing Committee erred in not giving due weight to the fact that the bus was checked by Inspector Mujuru between Headlands and Rusape and no anomally was detected.

That the Hearing Committee erred in heavily relying on the driver’s report without calling the driver to give oral evidence and be subjected to cross-examination, and

That the Hearing Committee erred in holding that Appellant’s failure to bring top tickets was gross negligence and an act of disobedience to a lawful order when there was no such instruction from the employer to bring back all top tickets.

Appellant prayed for reinstatement without loss of salary or benefit or alternatively payment of damages in lieu of reinstatement.

Let me now proceed to deal with grounds of appeal as raised by the Appellant. Firstly the Appellant submitted that the Hearing Committee should have considered that a Mr Mujuru had checked the bus and found everything to be in order. The fact that Mr Mujuru did not raise a complaint showed that Appellant had done his job well. This submission could have been relevant on a charge of fraud or theft but Appellant did not face those charges. Appellant faced charges emanating from his failure to surrender top ticket copies to Respondent for a ticket audit. The mere fact that Mr Mujuru checked the bus between Headlands and Rusape did not absolve Appellant from handing over the top copies of the tickets for ticket auditing. I therefore do not find merit in this ground of appeal as it is not relevant to charges faced by the Appellant.

Appellant also submitted that the Hearing Committee erred in relying on the driver’s report without calling the driver to give oral evidence. Counsel for Respondent referred me to the minutes of the hearing. On page 3 of the minutes under “DELIBERATIONS” a Chinhamu who was a Manager representative is quoted as follows;

“Chinamu: Do we need the driver or we can “	proceed.”

The Chairman interjected and said;

“Chairman: Evidence can be written or oral, but it is the right of the Respondent and all of you to decide whether you want to question the driver if you need more information or if you want what is in the report to be made clear. I cannot deny you that opportunity; as such we can adjourn and call the driver.”

A Namilo who was a workers representative responded;

“Namilo: His presence does not change anything on the written report if you call him them you can handle the case with your driver.”

Even before then a Mr Manjobva the other workers representative had indicated on the top of page 3 of the minutes that they did not want the driver to be called.

“Manjobva: You only have one witness, the driver and we do not want him can we have another witness.”

It is therefore clear from the above that the Respondent had offered to call the driver so that he may lead evidence and be subjected to cross-examination. Appellant himself refused such offer. There is no requirement that the driver should have testified orally. Written evidence is admissible and since both parties agreed to having the written report without oral evidence there is no blame which attaches to the Hearing Committee. Appellant cannot complain when he consented to the driver’s report to be accepted without oral evidence. Again this ground lacks merit.

Finally Appellant argued that the Hearing Committee erred in holding that Appellant’s failure to bring top tickets was negligence and an act of disobedience to a lawful order when such tickets belong to passengers and where there were no instructions from employer to bring back all top tickets. Again the worker representatives confirmed that it is the company policy, that top copy tickets should have been submitted for purposes of audit.

On page 2 of the Minutes of the hearing from the 6th line from the bottom:

“CHINHAMU: We need duplicate tickets for these 12

passengers.

MUSONZA:	These got wet from the rains as they were on the dash board. Did not know these were needed that much, I managed to safeguard the money which is more important.

CHINHAMU: This is a company policy and these

tickets were in your custody and must have been submitted to the ticket auditors as usual.”

From the worker representatives the Appellant should have submitted top tickets to the ticket auditors as per the company policy. The facts are common cause that such tickets were not submitted to the ticket auditors. Instead Appellant testified that he left such tickets on the dashboard and such tickets got wet. Appellant negligently handled the tickets resulting in them being damaged by the rains.

In conclusion there is evidence on a balance of probabilities that indeed Appellant committed the offences in question. The Hearing Committee cannot be faulted for reaching the finding that Appellant committed those offences. Appellant has not shown any basis for this Court to interfere with the findings of the Hearing Committee.

In the result the appeal lacks merits and be and is hereby dismissed with no order as to costs.

Robinson and Makonyere – Appellant’s Legal Practitioners

I.E.G. Musimbe & Partners – Respondent’s Legal Practitioners