Victor Banda v Shamva Mine (Metallon Gold Zimbabwe)

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/224/13
HELD AT HARARE 4TH JUNE 2013
CASE NO
JUDGMENT NO LC/H/224/13
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IN THE LABOUR COURT OF ZIMBABWE	    JUDGMENT NO LC/H/224/13

HELD AT HARARE 4TH JUNE 2013		    CASE NO LC/H/599/11

VICTOR BANDA					Appellant

SHAMVA MINE					Respondent

(METALLON GOLD ZIMBABWE)

Before The Honourable G Musariri, President:

For Appellant			Mr R Jumbe, Unionist

For Respondent			Mr T Tandi, Attorney

MUSARIRI, G:

Appellant appealed to this Court against his dismissal from employment by Respondent.  His Heads Of Argument summarised the case as follows;

“1.	It is respectfully submitted that Respondent errored (sic) in dismissing  Appellant on allegations of incompetence because (to) the job was not done by three surveyors – namely H Chitonje, A Pazvakavambwa and M Mapfumo.

Respondent  did not dispute that according to the record of minutes of hearing.

2.	We further submit that according to minutes, of (which) it is alleged that Appellant has for a long time been counselled on his shoddy work performance but there is no documentary (sic) to that effect.  In fact Respondent is after creating an unnecessary and baseless case against Appellant.

3.	It is further submitted that according to surveying standards after every 5 metres of blast, surveying should take place. Other surveyors went for 15.6 metres surveying but without detecting the error.  Therefore the blame cannot be laid on Appellant alone.”

The disciplinary hearing was held on Thursday 25th August 2011 in the Technical Services Manager’s Office.  The minutes thereof are filed of record.  The case against Appellant set out thus,

“. 	 A complaint about his shoddy job was first raised by Mine Captain Kadzviti.

.  	After the complaint he assigned an inexperienced trainee (Pazvakavambwa)  to go and rectify the problem, but without success.

.	Two tunnels were failing to hole into each other for a long time until the senior surveyor (Mr Chindoko) went to correct the situation on 05/08/2011.

.	Victor Banda was assigned in May to direct mining of 3SWI3 M/S/L or E & W to hole each other for production as scheduled.  He misdirected the mining and drives did not hole.

15.6 metres of extra development was mined but still failed to hole at $914.02 per metre.  Company lost

$14 258.71 in monetary value and production time delayed by two months.  See diagram attached.”

(The underlining for emphasis is mine)

Appellant was employed as a Surveyor.  It was part of his key duties to give direction to mining operations.  He was assigned to direct mining of a tunnel to connect with another from the opposite direction.  He misdirected the operation resulting in the failure to connect the tunnels.  His excuse was that there were other surveyors involved.  They should all have been held responsible.  However he was held accountable for his section of the operation.  A complaint was raised.  Instead of rectifying it he assigned trainees who failed to rectify the problem.  By the time the Senior Surveyor intervened

Respondent had suffered a loss of $14 258.71 as a result of the error.  It also lost valuable production time.  The misdirected operation created an unsafe environment for the miners.  I am satisfied that on these facts Appellant was guilty of incompetence or inefficiency in the performance of his work.  That he failed to rectify his error when the initial complaint came was aggravated by the fact that he sent trainees to rectify the error.  This was further aggravated by the substantial losses in time and money incurred by his employer.  Shifting blame to trainees does not assist as he was the Surveyor who was given the task in question.  Dismissal was justified in this case.  I am fortified in this view by the case of

Toyota Zimbabwe v Moyana 2005 (1) ZLR 65 (S) where Malaba JA (as he then was) stated that (at 70E),

“It is important to bear in mind that what was in issue in this case was not the possession of the requisite skill for the particular job Moyona was engaged to do.  What was in issue was whether or not he had exercised the skill.  The evidence showed that he did not...”

In casu Appellant clearly failed to exercise the skill for the job he was engaged to do.

Wherefore it is ordered that,

The appeal is hereby dismissed; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT