JAMES MUTASA

A Chipinge Government Arbitrator, Desire Makaure recently awarded that Dulys’ Motors Mutare either reinstate Tendai Maganzo an employee who was unfairly dismissed, to his position without loss of salary and benefits, or, if reinstatement is no longer tenable pay him damages in a sum agreed by parties or assessed by the arbitrator.

Maganzo was charged and subsequently dismissed for any act of conduct or omission inconsistent to fulfillment of the express or implied conditions of his contract of employment after he was accused of driving a truck for a test drive without following security protocol

According to the arbitral award, Cadwell Mukonde a Duly’s Business Unit Manager had stated that Maganzo a class 3 mechanic was working on a Rusape Town Council Refuse Truck vehicle and on 17^th of May 2024 at around 1650 hours, he drove off the truck for a purported test drive for about 1,5km from the garage. In the process, the truck broke down and it ended up being towed by the Dulys’ Motors towing tractor back to the garage. On the way back to the garage, the towed truck accidentally damaged two parked vehicles and respondent incurred an estimated cost of US$2775, 00 for the two vehicles as a result of this accident.

Mukonde’s argument that Magazo had driven the Rusape Town Council Refuse Truck for a test drive without following security protocol was vehemently disputed by, Justin Muonda who appeared on behalf of the dismissed employee

“The decision of dismissal by respondent was not merited and is not proven. The security protocol was followed and the security guard entered in his occurrence book that Magazo went on test drive,’ argued Muonda who added that, ‘the security guard, who was a witness during the disciplinary hearing, was contradicting what he entered in his occurrence book that appellant went for a test drive.”

Muonda successfully proved to the Arbitrator that the security officer who was a key witness for Duly’s contradicted himself by providing the occurrence book as well as the minutes of the disciplinary hearing stating that indeed Magazo had followed the security protocol.

In his award Makaure stated that upon scrutiny of both oral and written submissions, it was established that the bone of contention underlying the dismissal is whether the appellant followed security protocol before going for a test drive. In parties’ submissions it is clear that the security guard is the focal person who carries out the security checks and clears the vehicles out of the premises. The above observations shall be used as the yardstick to measure whether appellant went through the security protocol before going out of the premises with a vehicle.

“The security guard’s occurrence book, showing that appellant went for a test drive was submitted by appellant and neither respondent nor security guard disowned the book. The security guard, who was the witness during the hearing, said appellant told him that he (appellant) wanted to park the vehicle outside the premises but he (security guard) went on to record that appellant went for a test drive upon asking someone inside the premises. The security guard chose not to record what he was told by the appellant; this makes his actions questionable,” reads part of Makaure’s award.

In the arbitral award Makaure concluded thus, “The disciplinary committee still found the appellant guilty of not following security protocol before going for a test drive. However, this tribunal established that the security protocol was followed and accordingly, this appeal is merited and ought to sail through.”

Makaure concluded his award by upholding the appeal and ordering that Dulys’ Motors either reinstate Magazo without loss of salary and benefits or alternatively, if reinstatement is no longer tenable, it should pay him damages in lieu of reinstatement in a sum agreed by parties or assessed by this tribunal.