Richard Zengeya v Tobacco Research Board

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/425/2016
HARARE, 23 MAY 2016 &
22 JULY 2016
CASE NO LC/H/827/2015
---------


IN THE LABOUR COURT OF ZIMBABWE		JUDGMENT NO LC/425/2016

HARARE, 23 MAY 2016 &					        CASE NO LC/H/827/2015

22 JULY 2016

In the matter between

RICHARD ZENGEYA							APPELLANT

Versus

TOBACCO RESEARCH BOARD						RESPONDENT

Before the Honourable E T Muchawa J

For the Appellant	V A Dzingirai (Legal Practitioner)

For the Respondent	G Mhlanga (Legal Practitioner)

MUCHAWA J:

This is an appeal against the determination of the respondent’s General Manager which confirmed the finding of gross negligence and a penalty of dismissal against the appellant.

The appellant was employed by the respondent as a driver for twenty-five years. On the day in question he was assigned the task of towing a 10 000 litre bowser containing water using a tractor. In the process the tractor broke into two. The appellant was subsequently charged of gross negligence in the execution of his duties in terms of Paragraph 8 of Group D (Serious Offences) of the respondent’s Code of Conduct. He was found guilty and dismissed from employment. His attempts at appealing internally were unsuccessful hence this current appeal.

There are six grounds of appeal before me which raise issue with the propriety of the verdict and penalty imposed. I address each of these in turn below. The point in limine was incorporated in the submissions on the merits.

Propriety of Guilty Verdict

The appellant argues that he was wrongly found guilty of gross negligence as his conduct did not reflect gross negligence or even mere negligence.

I was referred to several authorities to distinguish between ordinary negligence and gross negligence. The case of Rosenthal v Marks 1994 TPD 172 at 180 is a chief authority and MURRAY J states at page 180 that:

“… gross negligence (culpa lata, crassa) connotes recklessness, an entire failure to give consideration to the consequences of his actions, a total disregard for duty …”.

It was further argued that gross negligence is no more than ordinary negligence of an aggravated nature and that an objective test has to be applied. When such a test is applied then conduct amounts to gross negligence where such conduct departs from the standards of the reasonable man. (Exparte Lebowa Development Corporation Ltd 1989 (3) SA 71 T).

It is the appellant’s case that the breaking into two of the tractor was not reasonably foreseeable and preventable.

On the other hand, the respondent points to the series of actions of the appellant to demonstrate that there were actions and omissions which aggravated the offence to gross negligence as set out by the general manager. These are:

That the appellant attempted to turn a tractor towing a 10 000 litre bowser where there was inadequate space leading to sinking of the browser in the soil.

That after initially unhitching the bowser and seeking help of another tractor to pull, the appellant hitched it back whilst still full and continued to attempt to pull away sinking the tractor up to almost half wheel level (diff level).

He did not seek the assistance of his superior or inform him of the problem at hand.

The respondent maintains that any reasonable person could have foreseen the consequences of such conduct and insists that the tractor broke not as a result of a mechanical fault or that it had recently been refurbished and was a combination of two tractors in make put together. It is contended that the errors of judgment which occurred on the part of a licenced driver when he sought to turn the tractor in impossible circumstances and continued skidding the tractor when it was sinking amounted to gross negligence. It is further argued that such decisions did not require any more knowledge of a mechanic but driving.

I was provided with pictures of the tractor which show that it had sunk to half wheel level and the point at which it broke.

The appellant was well aware that he was driving a refurbished tractor. He was aware that the bowser was a 10 000 litre one, amounting to a 10 tonne weight. He was aware it had sunk into the soil on his attempt at turning the tractor. It is evident from the pictures that he was aware of the tractor’s sinking too. In pulling the tractor using another, as was claimed to be the practice, whilst it was hitched to the 10 tonne weight on the other side, which was stuck in the soil, any reasonable driver would have foreseen the consequences of his actions in such circumstances. I am persuaded that the sum total of the appellant’s actions point to an entire failure to give consideration to the consequences of his actions. No amount of further training would have addressed this.

At the hearing, the appellant advanced the new argument that he should have been charged of a Group C offence of loss of, or serious damage to, or misuse of Tobacco Research Board and client property due to negligence or careless behaviour on the part of the individual concerned. This would have attracted a penalty of a final written warning for a first offence.

I am in support of the respondent’s contention that this submission is not backed by any ground of appeal as none of the six grounds of appeal state that the appellant was wrongly charged. In any event, it is not for the appellant to elect a charge and a penalty. The Code of Conduct and the law in general gives the employer the right to charge an employee for an offence he is believed to have committed.

Accordingly, I find no merit in grounds questioning the propriety of the verdict.

Propriety of the Penalty of Dismissal

It is the appellant’s case that the penalty of dismissal was reached without considering mitigating factors, in particular the length of service. It is further averred that the general manager wrongly considered as an aggravating factor that the appellant did not accept responsibility for his actions.

The appellant argues that dismissal should be a penalty of last resort and that the respondent’s general manager and the disciplinary committee were enjoined by the provisions of section 12B (4) of the Labour Act [Chapter 28:01] to consider mitigation. I was pointed to the appellant’s twenty-five years of service and the fact that he was nearing retirement and has very slim chances of getting an alternative job. I was referred too to the clean record of service, that he is a bread winner with many dependants.

It is further argued that it is not mandatory to impose the maximum penalty.

The record shows that the appeals committee considered both the mitigating and aggravating factors and concluded that the aggravating factors far outweighed the mitigatory factors.

The respondent referred me to the case of Toyota Zimbabwe v Posi SC 55-07 which states:

“The position at common law is that a high degree of negligence, such a gross negligence in the performance of work, justifies an employer dismissing the employee…”.

As to the issue of lack of remorse, I was referred to the case of DeBeers Consolidated Mines Ltd v CCMA & Ors (2000) 21 ILJ 1051 (LAC) wherein it is stated:

“This brings me to remorse. It would in my view be difficult for an employer to re-employ an employee who has shown no remorse. Acknowledgment of wrong doing is the first step towards rehabilitation. In the absence of a recommitment to the employer’s workplace values, an employee cannot hope to re-establish the trust which he himself has broken …”.

It is not unusual for the long service of an employee to be considered as an aggravating factor due to the greater duty of care reposed in a more experienced employee.

Having noted that the aggravating and mitigatory factors were indeed considered, that an employee’s remorseless attitude can do an employment relationship untold harm and that in some cases long services can be considered as an aggravating factor, I find no merit in questioning the penalty of dismissal.

The appeal is accordingly dismissed for lack of merit.

Chivore & Partners, appellant’s legal practitioners

Chihambakwe, Mutizwa & Partners, respondent’s legal practitioners