Stephen Ncube v Cross Country Containers (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/494/14
HARARE ON 24th JULY, 2014
CASE NO. LC/H/REV/136/14
AND 1 AUGUST, 2014
JUDGMENT NO. LC/H/494/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/494/14

HARARE ON 24th JULY, 2014			                    CASE NO. LC/H/REV/136/14

AND 1st AUGUST, 2014

In the matter between

STEPHEN NCUBE      					–	Applicant

And

CROSS COUNTRY CONTAINERS (PVT) LTD		–	Respondent

Before The Honourable L. M. Murasi, J.

For Applicant :	In Person

For Respondent:	Ms Angeline Mupondi  (Human Resources Officer)

MURASI, J.

Applicant was employed by the Respondent as a driver.  He is alleged to have driven his truck without an escort contrary to standing instructions. It was stated that copper consignments were to be escorted up to Chirundu Border Post from Zambia. Applicant was brought before a Disciplinary Committee which was deadlocked on the matter and the matter was referred to the Managing Director in terms of the Code. The Managing Director issued a Final Written Warning as the penalty on the Applicant. Applicant alleges that this was incompetent and has approached this Court.

Applicant alleged that the Code of Conduct which is Statutory Instrument 67 of 2012 provides for a Written Warning for a first offence. He also alleged that the hearing was pre-determined as it was stated that a Written Warning was to be given to him even before the hearing. Applicant further alleged that the Disciplinary Committee, in so-doing, showed bias and prejudice.

Respondent, represented by Ms Mupondi, stated that Applicant refused to sign the Written Warning that was given by his immediate supervisor preferring to go for the hearing. When the Disciplinary Committee was deadlocked, the matter was referred to the Managing Director in terms of the Code. The Managing Director found aggravating features and imposed a Final Written Warning to the Applicant. Respondent further stated that Applicant has since been dismissed on other different misconduct charges.

A reading of the record shows that Applicant was afforded the chance to present his case and to cross-examine. Applicant’s representatives were also afforded the opportunity to make observations and cross-examine on behalf of the Applicant. This shows that there was substantial compliance with the audi alteram partem principle. Applicant has also averred that there was bias on the part of the Disciplinary Committee. This is difficult to grasp. Applicant’s representatives were part of that Committee. The Committee did not reach consensus as to whether Applicant was guilty of the offence. A deadlock was therefore declared. The evidence in the record does not show that there was any bias or prejudice shown towards the Applicant.

The crucial question is whether the Managing Director imposed a competent penalty on the Applicant in the circumstances. Ms Mupondi made a concession that the penalty for such an offence was a Written Warning. She also stated that a Final Written Warning is imposed on a second breach. The Managing Director in giving reasons for the penalty states that he noted the “behavior as being highly insubordinate of the company’s line management authority.” The Managing Director was of the view that such behavior on the part of the Applicant warranted a Final Written Warning. Was the Managing Director correct in coming to such a conclusion? The Managing Director was of the view that the actions of the Applicant were of a serious nature. It is trite that in order to interfer with the discretion exercised by the Managing Director, the Court will need to find that there was a misdirection. Further, the Court will have to be satisfied that Applicant was guilty of the misconduct. To be guilty of misconduct the person concerned must appreciate that he is acting wrongfully or is wrongfully omitting to act and yet persists in so-doing with reckless indifference as to what the results may be.  Applicant was aware that there was need for an escort. Instructions had been issued by the Head Officer that the drivers were to wait for the escort. They did not do so. There was flagrant disregard of the company’s rules. Applicant was clearly guilty of the misconduct.

The Managing Director was of the view that apart from the refusal to follow standing instructions, there was insubordination on the part of the Applicant. The Managing Director arrived at the decision that the gravity of the misconduct called for a stiffer penalty than the one provided in the Code. He thereafter imposed the penalty of a Final Written Warning. The following observation was made by MALABA DCJ in Innscor Africa (Pvt) Ltd. vs. Letron Chimoto, SC 6/2012;

“A principle has now been firmly established to the effect an appellate court should not interfer with an exercise of discretion of a lower court or tribunal unless there has been a clear misdirection on the part of the lower court.”

The Court is of the view that the Managing Director clearly justified his reasons for imposing the penalty that he did. There was therefore no misdirection on his part.

In the result, the application for review is dismissed with no order as to costs.