Norman Kachomba v Clover Leaf Motors

### Preamble
THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/108/20
HELD AT HARARE ON 20TH NOVEMBER, 2019
CASE NO.
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THE LABOUR COURT OF ZIMBABWE	       	       JUDGMENT NO. LC/H/108/20

HELD AT HARARE ON 20TH NOVEMBER, 2019               CASE NO. LC/H/82/19

AND 22nd MAY 2020

In the matter between:-

NORMAN KACHOMBA						Applicant/Appellant

And

CLOVER LEAF MOTORS						Respondent

Before the Honourable Mhuri, J.

For Applicant/Appellant	:	Mr. R. Mandikumba (Legal Practitioner)

For Respondent			:	Mr. J.R. Tsivana (Legal Practitioner)

MHURI J.

This is a combined appeal and review application and for convenience, I will deal with the application for review first.

Applicant was in Respondent’s employ as a Technician Mechanic.  As part of his duties, on the 9th January, 2019 applicant carried out a major service on a client’s motor vehicle.  What constituted major service was not an issue.  It inter alia constituted removing the tyres and putting them back on the motor vehicle.  After completing the service, the motor vehicle went through quality control, washing and was parked at the collection bay awaiting collection by the client.

On the 21st January, 2019, the client collected the motor vehicle.  It was a few hours after collection that a report was received from the client that the left front wheel had come off when the motor vehicle was in motion and sustained some damage on the fender.

It was as a result of this that applicant was charged with an act of misconduct vis gross incompetence or inefficiency.  This act falls under Section C, severe offences in terms of respondent’s Code of Conduct (Zimbabwe Motor Investments Employment Code of Conduct) and calls for a dismissal penalty for a first breach.

A disciplinary hearing was conducted the result of which was a finding of guilty and a dismissal penalty was imposed.  Applicant’s appeal to the Managing Director was unsuccessful hence the current proceedings before this Court.

In his application for review, applicant alleges procedural irregularities which would render the disciplinary proceedings fatally defective.  His grounds are that:-

The matter was never investigated to establish the charge;

The complainant who raised the charges, was not applicant’s immediate supervisor.

Applicant was wrongly charged by complainant.

No witness with first-hand information was called to testify.

The hearing officer turned himself into an investigator when during adjournment he called the Operation Executive seeking information on issues raised by applicant.

Applicant was asked to write a report before the matter was fully investigated.

Applicant’s prayer was to have the disciplinary process set aside and that he be reinstated to his position without loss of salary and benefits.  It is noted that at the conclusion of his oral submissions, applicant’s legal practitioner’s prayer was to have the proceedings set aside and the matter remitted to the Disciplinary Committee.

These grounds of review are substantiated in applicant’s founding affidavit filed of record.

The respondent’s submission in general was that there were no procedural irregularities committed by it that would warrant the setting aside of the entire proceedings.  If any, the little procedural irregularities did not cause applicant any prejudice.

Respondent has a registered employment code of conduct which is binding on both the employer and its employees (THE CODE).

The Code provides for a disciplinary procedure to be followed.  It states:-

“where an immediate supervisor believes that an offence which warrants disciplinary action has been committed he should fully investigate the case and if he satisfies himself that the offence warrants a hearing he shall raise a complaint by completing a complaint form provided and submitting to the Branch or Senior Manager

Upon receiving the complaint the Manager shall ask the employee to put his side of the dispute in writing.

………………………………………..”

From the above, four observations are made.

These are that:-

The role is on the immediate supervisor;

Full investigations are to be conducted;

The complaint is raised;

The employee is given an opportunity to respond.

In casu, it is not in dispute that the complaint form was raised by Thomas Tapfuma who was the Workshop Manager and not the workshop foreman, who was the applicant’s immediate supervisor.

Was this an irregularity which was so fatal as to vitiate the proceedings? The answer in my view is in the negative.  Indeed the code provides that it is the immediate supervisor’s role to raise the complaint but did applicant suffer any prejudice when the workshop manager and not the workshop foreman raised the complaint?  I do not think so.  A reading of the complaint forms shows that it stated the offence and then the narration of the undisputed factual background.

At the onset of the disciplinary hearing, applicant confirmed receiving the document on time, signed it and that he pleaded not guilty.

In my view, the fact that the complaint form was issued by the workshop manager and not the workshop foreman is a non-issue.  There was no prejudice suffered by applicant as a result.

This procedural irregularity is not so fatal and cannot assist applicant at all.

The principle was well established in the cases of –

(1)	TICHAWANA NYAHUMA

vs

BARCLAYS BANK (PRIVATE) LIMITED 2005 (2) ZLR 445 (S)

(2)	JOCKEY CLUB OF SOUTH AFRICA

Vs

FELDMAN 1942 AD 340 @359

As regards conducting full investigations, it is my view that each case should be dealt with in its context.  It is not all the cases that full investigations have to be conducted.  In casu, it is common cause that:

Applicant conducted a major service on the client’s motor vehicle;

The service entailed removing and refitting the motor vehicle tyres.

After quality control checks the motor vehicle was kept at the collection bay until the 21st of January when the client collected it.

A few hours after it had been collected the front wheel came off.

To state that respondent should have gone to the site where the wheel came off to establish whether the motor vehicle had hit a pothole, to investigate why it took 2 hours to drive from respondent premises to Belvedere in my view is stretching it too far.  This was a civil matter, labour matter to be precise, and not a criminal matter in which the matter has to be proved beyond all reasonable doubt.  The undisputed factual background in this matter did not call for very thorough investigations so as to cover all possibilities as alluded to by applicant.  The possibilities which applicant avers in his submissions that someone with a grudge against him could have loosened the nuts when the motor vehicle was at the collection bay, at Belvedere, that the motor vehicle could have hit a pot hole are all in my view far-fetched.

The rules of natural justice were properly observed in this case.  In labour matters it is not expected that the rigorous standards expected in criminal matters be observed to the letter.  Support is found in the case of;

CHATAIRA vs ZESA 2001 (1) ZLR 30

Further the remarks by CHEDA JA in the case of

JERRY MUSARIRI vs ANGLO AMERICAN CORPORATION SC 53/2005

are apt:

“I would point out here that as long as a charge of misconduct is preferred by an employer against an employee there is always a certain element of institutional bias, as the employer is the offended party.

However, this happens to be the situation in all misconduct cases.

What is important is that the misconduct matters are dealt with in a manner that is fair and impartial and that the rules of natural justice are followed.

The rules of natural justice in such a case are that the party concerned –

must be given adequate notice;

must be heard or be able to present his/her side of the story; and

should be allowed to call witnesses if he/she so wishes.”

The established principle is that a person guilty of misconduct should not escape the consequences of his misdeeds simply because of a failure to conduct disciplinary proceedings properly by another employee.  He should escape such consequences because he is innocent.  See:-

AIR ZIMBABWE (PRIVATE) LIMITED

vs

CHIKU MNENSA

MAVIS MWARWEYE	SC 89/2004

As regards the charge, it is trite that the choice of which charge to prefer is the prerogative of the employer.  This is equally so with the imposition of a penalty.  In casu, respondent through the complainant, preferred the charge of gross incompetence which is a severe offence calling for a dismissal penalty on first breach.  According to the complainant the choice of the charge was motivated by the fact that there was danger to life as the wheel came off when the motor vehicle was in motion and that there was loss of revenue to respondent as the motor vehicle had to be repaired.

In terms of the Code, the hearing official is enjoined to decide whether or not the alleged offender has committed the offence charged.  In compliance, the hearing official made the finding that there was an excess amount of repairs on the vehicle and also that in his analysis there was a danger to life as anything could have happened to the driver of the vehicle due to the wheel falling off.

This finding cannot be said to be grossly unreasonable despite the fact that complainant had asked the hearing official whether it was to remove the aspect of danger to life.  The issue of potential danger to life was key in the decision of which charge to prefer.

Further, I am not persuaded by the submission that since the act or omission was a once off incident the charge was inappropriate.  Applicant was not charged with habitual incompetence which entails repeated acts or omissions.  One act or omission can fall under the charge of gross incompetence in the manner one performed his duties.  This is irrespective of whether one’s record of service has been impeccable for years.

The Code defines gross incompetence or inefficiency as

“This refers to extensive failure to perform one’s duties without a reasonable cause”.

From the factual background which is generally common cause as alluded to earlier, the only plausible inference which can be drawn therefrom is that on a balance of probabilities, the applicant did not tighten the wheel nut, hence failed in his duties, grossly so, as a result it is my finding that the appropriate charge was preferred and there was no irregularity done by the hearing official in confirming it and finding applicant guilty as charged.

As regards the submission by applicant that respondent relied on hearsay evidence as there was no first-hand information, it is my finding that this ground has no merit at all.

The facts are common cause as alluded to earlier.  The procedure in civil matters in as far as admissibility of evidence in civil matters is concerned is different from the procedure adopted in criminal matters.

Section 27 of the Civil Evidence Act [Chapter 8:01] provides for the admissibility of hearsay evidence in civil matters.

“(1)	Subject to this section evidence of a statement made by any person whether orally or in writing or otherwise shall be admissible in civil proceedings as evidence of any fact mentioned or disclosed in the statement, if direct oral evidence by that person of that fact would be admissible in those proceedings.”

In casu, a report of the incident was made by the client to respondent.  This report was later corroborated by the driver of the vehicle though telephonically but in the presence of all the parties concerned.  It was not applicant’s argument that this was an irregular procedure.

I find that nothing turns on this ground of review either.

The only procedure which I find to have been irregular is about the hearing official contacting the Operations Executive outside the disciplinary hearing (in the absence of the parties) seeking clarification on issues raised by applicant.  Does this irregularity vitiate the entire proceedings?  I do not think so, in my view it is not so fatal as to render the entire proceedings a nullity.

As submitted by applicant that the grounds for the application for review and the appeal are intertwined my findings on the application for review equally apply to the appeal.

It is reiterated however that the choice of which charge to prefer is the prerogative of the employer and equally so, the imposition of a penalty is the sole discretion of the employer.

MASHONALAND TURF CLUB

vs

GEORGE MUTANGADURA 2012 (1) ZLR 183 (S)

It is a trite legal position that an Appellate Court will not lightly interfere with the employer’s exercise of discretion unless such discretion was not judiciously exercised.

INNSCOR AFRICA (PRIVATE) LIMITED

vs

LETRON CHIMOTO 	SC6/2012

Where an employer has taken a serious view of the act of misconduct to the extent that it considers it to go to the root of the contract of employment, it will be within its right to impose a dismissal penalty.

TOYOTA ZIMBABWE  vs  POSI  SC 55/07

In the instant case I find no justification in interfering with the penalty imposed, neither is there justification to interfere with the verdict returned.

Accordingly both the review application and the appeal are hereby dismissed with costs.

MANDIKUMBA & PARTNERS – Applicant/Appellant’s legal practitioners

SAWYER & MKUSHI – Respondent’s legal practitioners