Dealing with negligence

was employed by the Great Zimbabwe University as a driver. On January 7, 2011 Major was involved in a road traffic accident near Featherstone Police Station while driving a vehicle belonging to GZU.
The accident resulted in his co-worker sustaining serious injuries and the motor vehicle was damaged beyond repair. On March 1, 2011, Major was suspended from employment on allegations of negligence, before he was arraigned before a disciplinary committee.
He was facing a charge of violating Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations, 2006, Statutory Instrument 15 of 2006.
Major was found guilty of the charge and consequently dismissed with effect from May 3, 2011. Dissatisfied with the dismissal, he lodged a complaint of unlawful dismissal with the Ministry of Labour.
Upon failure to conciliate, the matter was then referred for compulsory arbitration, On June 15, 2011, the arbitrator ruled in favour of Major.
The operative part of the award read as follows:
“I therefore order that the applicant Mr S Major was not involved in an accident on January 7, 2011 due to negligent driving and driving without due care and attention and therefore he must be reinstated to his original job position without loss of salary and benefits with effect from March 1, 2011.
“If reinstatement is no longer an option in the opinion of GZU, the two parties in this dispute are ordered to approach the arbitrator for quantification of damages in lieu of reinstatement.
In the interim, GZU is ordered to par Mr Major all his monthly wages and applicable allowances if any for March 2011 to May 2011 through labour offices not later than June 30, 2011.”
Aggrieved by the award, GZU lodged an appeal with the Labour Court, arguing that the arbitrator misdirected himself in holding that the charge preferred against Major was improper.
It further argued that the arbitrator misdirected himself in holding that it was imperative that there was no cogent evidence that Major had been negligent and driving without due care and attention.
GZU submitted that misdirection was also in holding that the evidence put before the disciplinary committee was not sufficient to warrant a return of the guilty verdict.
It was submitted that the arbitrator erred in holding that Major was not negligent and was driving without due care and attention and reinstating him to his original job without loss of salary and benefits.
However, three issues that fall for determination have been succinctly drawn up by GZU.
These concern whether proper charges were preferred against Major, whether there was cogent evidence of negligence and whether dismissal was the appropriate penalty.
The first issue to be addressed is the aspect of the charge. Major was charged with contravening Section 4 (a) of the Labour (National Employment Code of Conduct) Regulations 2006, Statutory Instrument 15 of 2006 an act of conduct or omission in consistent with the fulfillment of the express or implied conditions of his contract.
The arbitrator came to a conclusion that the charge was improperly levelled against Major for two reasons: that the contract of employment had not been placed before him and that there was no clear policy for drivers existing at the institution.
It was GZU’s contention before the court that the charge was properly levelled. Major was employed as a driver and he was duty bound to observe the national road laws and to drive with due care and attention.
In this particular case, Major had failed to exercise due care and attention in driving GZU’s motor vehicle resulting in serious injury to a co-worker and extensive damage beyond repair to the motor vehicle.
It was GZU’s contention that there was no need for it to have a standing policy in place in order to lay the charge of violation of Section 4 (a) of Statutory Instrument 15 of 2006 in the circumstances of the case.
Major’s contention was that the arbitrator was correct when he concluded that in the absence of a policy on accidents involving drivers GZU had improperly levelled a charge.
However, GZU’s submissions are persuading. Major was engaged by GZU to drive its motor-vehicles. As a driver, it was an implied provision in his contract that he had — in the course of his duties — to ensure observance of national road traffic laws and to drive with due care and attention. As an implied condition of his contract there was therefore no need for GZU to prove the existence of a standing policy before the arbitrator, neither was there a duty to actually produce the actual contract of employment.
The arbitrator was clearly wrong when he reached his conclusion that the charge was improperly levelled against Major. The second issue is whether sufficient evidence was placed before the arbitrator to show that Major was indeed negligent and drove without due care and attention.
This issue generated a debate between the parties as to which test ought to be applied to determine whether based on the facts it can be gainsaid that Major was negligent or he drove without due care.
GZU relied on Geoff Feltoe, A Guide to The Zimbabwean Law of Delict, where negligence is defined as follows.
“Failure to display the same degree of care in avoiding infliction of harm which the reasonable person would have displayed in the circumstances.”
The same author also laid down two main essentials in determining whether negligence exists which are as follows. “Whether harm was reasonably foreseeable and whether the reasonable person would have guarded against harm.”
Major, while agreeing with the definition and essential elements of negligence, however, took issue with the evidence abounding in the record.
It was his submission that evidence of police officers placed before the disciplinary committee should have been inadmissible as police officers are generally considered to be by-standers and therefore incapable of reaching concrete conclusions as to whether a person’s conduct amounted to negligence or not.
It was his further submission that the duty lay with a competent court to base on the evidence before it, determine whether negligence had indeed been established on the facts.
Firstly, it is a trite principle that the burden of proof on labour matters being civil cases is no more than proof on a balance of probabilities as opposed to proof beyond reasonable doubt used in criminal matters. (see Zesa versus Dera 1998 (1) ZLR 500 (5).
The contention by Major that the proof required in this case needed to go beyond reasonable doubt was therefore clearly misplaced.
Secondly, it is not correct as propounded by Major that evidence of police officers given in parallel criminal proceedings should be equated to evidence of a by-stander, which evidence must be regarded as suspect and of minimal or no value.
Police officers in the course of their duties are entrusted to prefer charges against persons considered to have violated national law.
Any document such as admission of guilty compiled by a police officer and placed before a disciplinary committee can be considered as evidence in support of whatever charge is being levelled against an employee.
In the result, Labour Court resident Ms Bridget Chivizhe noted that Major was involved in a major accident, while in the process putting to risk the life and limp of the sole passenger he was carrying.
Accordingly, she allowed the appeal by GZU and set aside the arbitral award in favour of Major, ruling that his dismissal was fair.