Thomas Gusvu v Colbro Transport Masvingo (PVT) LTD

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/665/14
HARARE ON 24th SEPTEMBER , 2014
CASE NO. LC/H/1061/13
AND 10 OCTOBER, 2014
JUDGMENT NO. LC/H/665/14
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IN THE LABOUR COURT OF ZIMBABWE	                          JUDGMENT NO. LC/H/665/14

HARARE ON 24th SEPTEMBER , 2014			             CASE NO. LC/H/1061/13

AND 10th OCTOBER, 2014

In the matter between

THOMAS GUSVU						–	APPELLANT

And

COLBRO TRANSPORT MASVINGO (PVT) LTD	-	RESPONDENT

Before The Honourables R.F. Manyangadze, J

For Appellant :	Ms T.J. Magaya  (Legal Practitioner)

For Respondent:	Mr W.D. Mushoriwa (Human Resources Manager)

MANYANGADZE J,

This is an appeal against the decision of the Respondent’s Internal Appeals Officer, which upheld the decision of the Respondent’s Disciplinary Committee dismissing the Appellant from employment.

I must state, from the outset, that the hearing was conducted in terms of Rule 19(3)(a)(b) of the Labour Court Rules, Statutory Instrument 59 of 2006 (the Rules). The Court determined the matter on the basis of the submissions from the Respondent, vis-à-vis Appellant’s grounds of appeal, after the Appellant was barred for failure to file Heads of Argument within the time limit prescribed by the Rules.

The brief background to the matter is that the Appellant was employed by the Respondent as a Driver. He was charged with misconduct in terms of Clause 3.7 and 3.14 of the Transport Industry Code of Conduct: Statutory Instrument 67 of 2012 (insurbordination and willful disobedience of a lawful order). Particulars of the misconduct were that on 13th November 2013 at Murehwa Centre the Appellant carried some unauthorized passengers in the company truck that he was driving.

On 25th November 2013, the Disciplinary Committee found the Appellant guilty as charged, and imposed a penalty of dismissal. His appeal to the Respondent’s Appeals Officer was dismissed, prompting an appeal to this Court.

The Appellant’s grounds of appeal can be summarized as follows:-

Appellant was denied an opportunity to present his case in a language of his choice. He was compelled to use English when he had elected to use Shona.

He was not served with a charge sheet and case outline.

The Chairman of the Disciplinary Committee and his Committee were biased against the appellant.

Appellant was not given an opportunity to make submissions in mitigation.

There was insufficient evidence, on a balance of probabilities, to prove that he had committed the alleged acts of misconduct.

Grounds 1 to 4 of Appellant’s grounds of appeal clearly deal with the procedural aspects of the disciplinary proceedings. These include being denied use of a language of his choice, failure to serve a charge sheet and case outline and bias on the part of the Disciplinary Committee. These issues do not constitute proper grounds of appeal. The Appellant himself refers to these issues as “procedural irregularities”. Thus, he properly recognized that the issues were of a procedural nature. However, he went on to use them as a basis for his appeal. That was improper. Such issues form the basis of an application for review. They should have been brought by way of an application for review. Consequently, grounds 1 to 4 are improperly before the Court as grounds of appeal.

It is the last ground that attempts to address the substantive issues. This is the averment by the Appellant that the evidence produced was not sufficient to find him guilty of the alleged misconduct, on a balance of probabilities.

In his Heads of Argument, paragraph (d) Appellant elaborated on this ground as follows:-

“(d)	Appellant was convicted and dismissed yet there the evidence produced which was not sufficient to find the accused guilty on a balance of probabilities. Professor Madhuku in his book, An Introduction to Zimbabwean Law, he quotes McNally J.A. in the case of Zesa v Dera SC 79 – 98 where he stipulates that “…………………. In a civil case one is concerned to do justice to each party. Each party has a right to justice and so balance their competing claims. Hence the “balance of probability” test.”

In this respect, the Disciplinary Committee relied on the direct, eyewitness evidence of Mr Ndlovu, who said he saw the Appellant carrying some passengers in the company truck. The passengers disembarked and walked away when Mr Ndlovu approached the truck. Mr Ndlovu is employed by La Farge, a client of the Respondent, and was carrying out a routine check of Respondent’s trucks which were contracted to transport goods for La Farge.

The Appeals Officer noted that this witness was subjected to a lengthy interrogation, and had categorically maintained that the Appellant was carrying passengers. The Appeals Officer upheld the factual findings of the Disciplinary Committee based on the evidence that was placed before it. The Appeals Officer concluded;

“Evidence on a balance of probability in the circumstances certainly need not be stronger than led here.”

It seems to me the Appeals Officer was justified in his assessment of the Disciplinary Committee’s findings. It cannot be said that the Appeals Officer misdirected himself. This Court, in the circumstances, finds no basis on which to interfere with the decision of the Appeals Officer to uphold the conviction of the Appellant. It was based on evidence which the Disciplinary Committee found to be reliable and credible.

On the appropriateness of the penalty, the Respondent, as employer, viewed Appellant’s misconduct as serious. This was aggravated by the existence of a relevant previous conviction for which the Appellant was issued with a “Final Written Warning”. The Appeals Officer, in his decision, pointed out that the Final Written Warning was issued on 20th November 2012. The misconduct in casu was committed on 13th November 2013, and therefore still validly operated against the Appellant.

Given the nature of the evidence reflected on record, this Court finds no basis on which to interfere with the employer’s discretion to impose the penalty of dismissal.

In the result, it is ordered that:

The appeal be and is hereby dismissed in its entirety with costs.

The decision of the Respondent’s Internal Appeals Officer be and is hereby upheld.

Magaya Mandizvidza – Appellant’s legal practitioners