Owen Zieresa v Golden Valley Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/613/2016
HARARE 23 MAY 2016
CASE NO. LC/H/253/15
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/613/2016

HARARE 23 MAY 2016				       CASE NO. LC/H/253/15

AND 7 OCTOBER 2016

OWEN ZIERESA							Appellant

GOLDEN VALLEY MINE						Respondent

Before The Honourable G. Musariri, Judge:

For Appellant		Mr R. Jumbe, Unionist

For Respondent		Mr H. Mutasa, Attorney

MUSARIRI, J:

Appellant appealed to this Court against his dismissal from employment by Respondent.  The Notice of Appeal set out the factual background as follows;

“Appellant in this matter was employed as a standby driver for a period of four years.  On the 3rd of January 2015, appellant was called to ferry employees on standby from the mine to slymes dam. On that particular day it was raining heavily and appellant went to the slymes dam on two occasions without any problem.  On the third occasion the car stopped in the midst of stagnant water caused by heavy rains.  Appellant was charged by respondent on allegations of gross incompetence and he was dismissed at the initial hearing and the appeals committee upheld the verdict.”

Appellant’s appeal was founded on his claim that the “situation was not as bad as purported by Respondent …”This was premised on the fact that he had driven past the same spot twice before on that day.  Furthermore his colleagues helped him push the vehicle out of the water which meant that this was not a dangerous situation.  Lastly he claimed that the relevant Code requires that disciplinary action in the first instance should be educative rather than be punitive.

I must say at once that I am unimpressed by the appeal.  The minutes of the hearing are filed of record.  The relevant excerpts read thus,

“S. Mbiri: On Saturday morning 3rd January 2015, I was told by Msiza that the    truck went into a pool of water so deep that the car was submerged to bonnet level.  This action taken by Owen could have endangered the passengers and himself by drowning or being washed away by the flood water.

O. Zieresa: I am not disputing the case.  I passed two times safely. When coming back that is when the car stopped.  I am sorry for what happened.”

“K. Mlambo: How did you know the level of water?

O. Zieresa: I did not know the level.  The water was about the level of the lights. “

The above shows that Appellant recklessly drove a truck loaded with passengers into a “flood”.  How else can the water be described if it submerged the lower body of a truck.  In the process he endangered the lives of the passengers and the functioning of the truck. Such risky conduct falls below the standard expected of the professional driver that he was.  That he had passed through the spot twice before actually aggravated his conduct.  It showed that he was a serial offender.

In the circumstances I am satisfied that Appellant was guilty as charged.  His conduct deserved the penalty that was meted out by Respondent.  Therefore the appeal lacks merit and perforce must be dismissed.

Wherefore it is ordered that,

The appeal be and is hereby dismissed; and

Each party shall bear its own costs.

G.  MUSARIRI

J-U-D-G-E.