DISTRIBUTABLE (58)

Judgment No. SC 72/04

Civil Appeal No. 223/02

STUTTAFORDS REMOVALS (PRIVATE) LIMITED

v DARLINGTON       CHIBANDA

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA JA & GWAUNZA JA

HARARE, MAY 20 & SEPTEMBER 27, 2004

Ms B Mtetwa, for the appellant

The respondent in person

GWAUNZA JA: This is an appeal against a judgment of the then Labour Relations Tribunal (“the Tribunal”), in terms of which the appellant was ordered to either reinstate the respondent to his former employment without loss of benefits or pay him damages.

It is common cause that the respondent was employed by the appellant as a stacker. On 16 April 1997 he, together with others, was assigned to load certain household goods belonging to a customer onto a trailer for delivery the next morning. It was a standing policy of the appellant that loaded trailers should be locked for security purposes. Since the trailer in question had no keys attached to it, the respondent used a piece of wire to secure its doors and left for home. The following morning it was discovered that the piece of wire had been loosened and a 24” television set, which had been one of the items loaded onto the trailer, removed.

As a result, charges of gross negligence in not locking the trailer, resulting in a “substantial loss” to the company, and wilful disobedience of a lawful order to lock the trailer were brought against the respondent. As these were considered dismissable offences, the respondent was dismissed from his employment after being found guilty thereof. His appeal against the dismissal to the appellant’s managing director was unsuccessful. He thereafter successfully appealed to the Tribunal, a circumstance that led to the appellant appealing against the Tribunal’s decision.

In its grounds of appeal the appellant alleges misdirection on the part of the Tribunal, in particular that –

(i) it erred on the standard of proof it used in the assessment of the evidence and facts;

(ii) its findings on the facts were so grossly unreasonable and such a serious misdirection as to amount to a misdirection in law; and

(iii) it failed to properly take into account the fact that the respondent owed the appellant and its customers a high duty of care in ensuring the safety of goods entrusted to the appellant’s care.

As the appellant’s grounds of appeal clearly raise points of law, I am satisfied that the appeal is properly before this Court.

It was argued on behalf of the appellant that, contrary to the Tribunal’s findings, the absence of keys with which to secure the trailer in question was never in dispute. Rather, what was at issue was whether the respondent had taken the necessary steps to obtain the keys from the relevant officials. It was the appellant’s case that the respondent, upon realising that he did not have the keys to lock the trailer, failed to inform the operations manager, a certain Mr Ngarande. This was especially so since, on the evidence placed before the court a quo and as confirmed by the respondent himself, Mr Ngarande was present on the appellant’s premises during the loading of the trailer.

It was not in dispute that keys to the trailers were not kept on them because they invariably disappeared. Nor was it in dispute that, as a matter of practice, employees responsible for different trailers bought keys to them, at their own expense, and claimed refunds from the employer. (The respondent himself testified that he had in fact personally bought such keys in the past). They would then keep the keys whenever the trailer was not in use. In addition to this practice, it was accepted that keys could be provided, upon request, by the operations manager.

It is clear from the evidence before the court a quo that the provision by the appellant of keys for its trailers was not effected through the simple act of attaching such keys to the trailers and leaving them there. Rather, it was incumbent upon the persons responsible for the different trailers to either buy the keys at their own expense or request for them from management. “Locking” the trailers, therefore, in the understanding of both stackers and management, included the acquisition of such keys from management through the standard channels.

Against this background, the absence of keys from the trailer in question cannot be said to have been an unusual circumstance. Hence the charge by the appellant that, having realised that the trailer had no keys, the respondent was negligent in not taking all steps necessary to secure keys with which to lock the trailer.

The consequence of the respondent’s actions, or rather omissions, was that, contrary to standing company policy, the trailer was left unlocked. As a result, some person unknown had, with apparent ease, loosened the piece of wire used in an attempt to secure the trailer, removed and made off with the television set.

In my view, the evidence before the Court makes it clear that providing keys to trailers by the appellant, and the locking of such trailers by those responsible, went beyond what the literal meaning of those terms would suggest. The appellant charges in this respect that the Tribunal had erred in accepting, in the literal sense, that the respondent could not lock the trailer because the appellant had not provided the keys. Further, that because the operations manager could not be located, the respondent had done all he could do in informing his supervisor of the absence of the keys, and leaving after using a piece of wire to secure the trailer.

There is, in my view, merit in the appellant’s contention. Firstly, the Tribunal clearly misinterpreted the facts before it pointing to the real meaning of “providing keys” and the “locking of trailers”.

Secondly, the court a quo seems not to have appreciated the fact, established by the evidence, that, while the supervisor the respondent informed about the absence of the keys did not have it in his power to provide such keys, the operations manager, Mr Ngarande, was in a position to do so. Indeed, such supervisor, a Mr Ngarira, the respondent and one of the respondent’s witnesses, Mr Padera, all testified that Messrs Ngarira and Padera had looked for Mr Ngarande to no avail, although all acknowledged he was on the premises.

The respondent personally did not search for Mr Ngarande. Therefore, the respondent’s report to the supervisor, inasmuch as he knew it would not yield the keys required, was not the best course of action to take. It was incumbent upon the respondent, since he was aware that Mr Ngarande was somewhere on the premises, to search for him until he found him. Contact with Mr Ngarande was crucial in the fulfilment of the respondent’s mandate to lock the loaded trailer. The respondent instead proceeded to use a very crude and ineffective method to secure the trailer, which was full of a customer’s valuable property, and left for the night.

As correctly contended for the appellant, the court a quo disregarded the argument that the appellant consistently advanced, that the respondent, by virtue of his position as a workers’ committee member, should have appreciated, more than any other worker, the importance of ensuring that a loaded trailer was properly locked. The evidence before the Tribunal was that, as a member of the workers’ committee, the respondent had been party to the formulation of the standing policy that at no time was a loaded trailer to be left unlocked. He therefore owed the appellant and its customers a high duty of care. Indeed it can be said that the respondent’s purchase of keys with which to secure trailers assigned to him was driven by his appreciation of such duty of care.

Viewed against the company’s standing instructions to lock all loaded trailers, the high duty of care that he had towards the appellant and its customers, and the fact that he made no direct contact with Mr Ngarande to request the necessary keys, there can, in my view, be no doubt that the respondent’s actions fell short of the steps he could have reasonably taken to secure the trailer in question. Such actions also amounted to a disobedience of a lawful order, as well as constituting gross negligence. That being the case, the misdirection alleged against the Tribunal by the appellant, in relation to its findings on the facts placed before it as well as its failure to properly take into account the high duty of care that the respondent bore in respect of the appellant, becomes evident.

In the light of this finding, I do not consider it necessary to consider the merits of the appellant’s argument concerning the standard of proof used by the Tribunal in its assessment of the evidence and facts before it.

The appeal must accordingly succeed. It is in the result ordered as follows –

1. The appeal be and is hereby allowed with costs.

2. The order of the Labour Relations Tribunal is set aside and substituted with the following –

“The appeal be and is hereby dismissed.”

CHIDYAUSIKU CJ: I agree.

MALABA JA: I agree.

Kantor & Immerman, appellant's legal practitioners