Simbai Mutesva v Colbro Masvingo (Pvt) Limited t/a Colbro Transport

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/67/2021
HARARE, 23 MARCH 2021
CASE NO. LC/H/148//19
AND 18 JUNE 2021
LC/H/APP/447/18
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IN THE LABOUR COURT OF ZIMBABWE 	            JUDGMENT NO. LC/H/67/2021

HARARE, 23 MARCH 2021 				CASE NO. LC/H/148//19

AND 18 JUNE 2021						LC/H/APP/447/18

XREF LC/H/202/17

In the matter between:

SIMBAI MUTESVA							APPELLANT

versus

COLBRO MASVINGO (PVT) LTD				RESPONDENT

T/A COLBRO TRANSPORT

Before The Honourable Makamure J

For the Appellant			: Mr  L. M. Chimutashu  (Trade Unionist)

For the Respondent			: Mr Wilson D. Mushoriwa (H.R.O)

MAKAMURE J:

This is an appeal against the decision of the respondent’s internal appeal body.

The appellant was dismissed from respondent’s employ following disciplinary proceedings for gross negligence in terms of the applicable code. He was aggrieved by that decision and appeals on the following grounds and I quote:

“1.	The C.E.O. erred in dismissing the appellant when infect (sic) he was not responsible for the purported load shifts, accident and delay of the load delivery.

2.	The C. E.O further erred in failing to appreciate that even the driver of the truck in question never complained of the way he was loaded, but instead that the CARGO BELTS were not strong enough to sustain the load hence the mishaps.

3.	It should have been appreciated that by the time all the aforesaid incidents giving rise to this appeal occurred, appellant had knocked off duty and at home to an extent charging him as is herein stands grossly unfair and unreasonable.

4.	The load in question was allegedly rectified (re-arranged) in the company deport (depot) in broad daylight by a new/fresh set of personnel with relevant equipment at their disposal (forklifts and new cargo belts) and was dispatched. Appellant wonders how the alleged load shifts that resulted in a road traffic accident persisted and why he should shoulder the blame.

5.	Appellant never pleaded guilty as alleged, hence the minutes are defective and been fabricated to spell such misrepresentation of facts and the sentiments therein that appellant is a bad apple is an unfortunate aggravation for Complainant ought to have justified why he kept such a bad employee for over ten years and even expected a good example.”

The facts which are summed up in the invitation for a disciplinary hearing are that:

“… on 3rd of May 2017 you were sent to secure loads at PPC Msasa. You failed/neglected to secure the load properly on a vehicle fleet number H1106. You did not remove the pallet on the fore part of the “A” section of the trailer so as to reorganize the bags as is normally done. You also failed/neglected to properly secure the load on the “B” section of the trailer. Consequently, the vehicle had loads shifts three times, firstly before getting into the depot the next morning (4th May), after leaving depot at Zindoga and then around Beatrice. On the first instance, the load on the foremost pallet on the A section had to be removed and rearranged…”

The appellant who was a loader at the Respondent Company, attended to a truck which was loaded with cement bags. The bags were arranged on top of a pallet. After the truck was loaded, it was the appellant’s duty to remove the pallet or pallets which were on the front trailer. After removing the pallet from the trailer he was supposed to then rearrange the cement on the trailer where the pallet would have been removed. He was supposed to do the same on the second trailer on this same vehicle. The appellant did not do this. Instead, after the truck had been loaded he simply put a tarpaulin over the bags and secured the tarpaulin. He left the pallet in its original place and did not rearrange the bags. In short, he should have removed the pallet from underneath the bags, rearranged the bags and then secured the tarpaulin. This would have ensured that the bags were properly and securely in place. This would in turn ensure that the bags would not shift when the truck in question was in motion.

What this means is that the employer looked at how the Appellant conducted his duties before he went off duty and the consequences of such conduct.

In his defence the appellant denies responsibility towards the load shifts or the subsequent accidents on a vehicle whose load he had secured. He also blames the belts which were used to secure the load. Further the appellant denies responsibility as he avers that he had gone off duty by the time that all this happened.

The respondent submits that the appellant was supposed to have removed a pallet from the truck whose load experienced problems. Upon this truck reaching and turning into the respondent’s depot from Masasa, the front most load moved due to the presence of the pallet underneath the cement bags. The staff who were then on duty corrected the load by removing the pallet and rearranging the bags. Had the applicant done his job properly he would have removed the pallet, arranged the bags and then secured the tarpaulin.

During the course his address in court, the appellant did not mention anything to do with removing the pallet or rearranging the bags. He avoided this area of his conduct. It appears he deliberately avoided this aspect for fear of confirming his failure to conduct his duties properly. This means that whether or not he was on duty at the time that the accidents occurred is immaterial. What is crucial is how he performed his duties at the time that he was on duty.

Since the appellant avoided commenting on the removal of the pallets and rearranging the bags which is the basis of the charges, I can say that the explanation which has been proffered on behalf of the respondent is probable. What this means is that the appellant failed to prove his case on a balance of probabilities.

The respondent has therefore proved on a balance of probabilities that the appellant was indeed grossly negligent in the performance of his duties. The respondent has referred the court to the cases of Standard Chartered Bank v Chipiningu SC 104/2002 and Wellington Likukuma v Scotfin SC 186/98 in support of what constitutes Gross Negligence. The court is grateful for the authorities cited.

In Standard Chartered Bank v Chipiningu the Supreme Court stated that:

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

When the appellant tied the tarpaulins without first removing the pallet and without rearranging the bags as he was supposed to do, he was reckless as to the consequences of his actions. He totally disregarded his duty. Consequently, his failure to perform his duties properly caused accidents. The appellant would want the court to believe that since he was already off duty when the accidents occurred, he is not liable. However, facts show that the accidents were a direct consequence of his conduct. He can therefore not escape liability. This means that there is absolutely no merit in all his grounds of appeal.

As already noted the appellant failed to discharge the onus required of him. The earlier tribunal cannot be faulted in its findings. There is therefore no need to interfere with the earlier tribunal’s findings. In Christopher Samson v Windmill (Private) Limited SC 7/15 the Supreme Court Stated that:

“The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion. Barros and Another v Chimponda 1991 (1) ZLR 58 SC; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664, 670D.”

The appeal is hopeless.

Accordingly, it is ordered that:

1. The appeal be and is hereby dismissed.

2.  There is no order as to costs.