Antonio John v Unifreight Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT
NO LC/H/601/16
HELD AT HARARE 27 MAY 2015
CASE NO
JUDGMENT NO LC/H/601/16
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IN THE LABOUR COURT OF ZIMBABWE			JUDGMENT NO LC/H/601/16

HELD AT HARARE 27 MAY 2015				CASE NO LC/H/473/15

& 7 OCTOBER 2016

In the matter between:

ANTONIO JOHN				Appellant

And

UNIFREIGHT LTD				Respondent

Before The Honourable Chidziva, J

For Appellant		C Chigwada (Organising Secretary)

For Respondent		T J Mafongoya (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the Appeals Authority that was communicated through a letter dated 13 March 2015.  It states as follows

“The appellant has failed to show error or misdirection on the part of the Disciplinary Committee.

Therefore I uphold the determination by the Disciplinary Committee that you were found guilty as per Unifreight Code of Conduct and the penalty of dismissal stands.”

The brief facts of this matter are that appellant was employed as a tyre fitter.  On 30 March 2015 he was found working on a vehicle tightening the tyres with a wrench. He had been forbidden to use the wrench on the nuts.  Appellant then appeared before a disciplinary committee charged with contravening Part III of the Unifreight Code of Conduct and Grievance Procedure Part 3, 3.5 i.e.

“iv)	 deliberately refusing to carry out an order in circumstances where the offender is clearly being insubordinate, as read together with part 7:3:1 9 (a) deliberately refusing to carry out a lawful instruction given by a person in authority.

xvi)	disobedience to a lawful order given by a person in authority: as read together with Part 7:3:1 (b) failing to obey a lawful instruction, insubordination.

ix)	any act of dishonesty against the company or any of its customers whether a criminal conviction is pursued or not as read with Part VII 7:4.2 (i.e.) false evidence. Deliberately giving untrue, erroneous or misleading information or testimony whether verbally or in writing.”

The appellant was found guilty of these offences and dismissed from employment.  A penalty of a final written warning was imposed on the last charge.  These are the penalties that were upheld by the Appeals Authority.

The grounds of appeal cited by the appellant are as follows

The charges are largely misplaced taking into consideration the circumstances surrounding the incidence firstly deliberately refusing to carry out an order in the circumstances where the offence is clearly being insubordinate.  The wrench was used for both tightening and loosing nuts for about three years so much so that it becomes an involuntary action.

Respondent through the human resources director makes a bold uniformed claim that there had been instructions on safety issues to the effect that the wrench should not be used for tightening and loosening.

The instruction given by the technical director was that appellant should not use the impact wrench but that appellant should not engage the tightening/screwing gear.”

The appellant therefore prayed that the dismissal should be set aside and that

appellant should be reinstated without loss of salary and benefits.

The respondent in response submitted that

The appellant has openly admitted that he was using the impact wrench 	 for tightening and yet the technical director had issued a lawful instruction not to use the impact wrench for tightening.  Appellant also gave false information to cover this act.

Appellant as an employee should at all times be able to follow a lawful instruction whether or not it may cause safety issues or not.  Appellant blatantly went against lawful instructions given by technical director.

It is common cause that the appellant used a wrench on the day in question.

What is to be decided is whether appellant failed to obey a lawful instruction on the day in question.

During the disciplinary proceedings (page 19) the appellant admitted that he had been told not to use the wrench for tightening nuts.

“DD.  Can you confirm that you were told on 25 March 2015 that you must not use the impact wrench to tightening nuts.

AJ 	Yes

DD	When you were caught by Mr Hockey why did you not say the truth

AJ	I responded subconsciously at first and I later agreed and apologised

If there was nothing wrong with what appellant was doing why did he apologise.  He has also admitted that on 25 March 2015 he was told not to use a wrench.  He was found using it for tightening nuts some five days later.

In the case of Innscor Africa (Pvt) Ltd v Terrence Gwatidzo SC 5/2015 it was held that

“In principle, every employee has a duty to obey any lawful order given by his or her employee.”

KORSAH JA in the case of PTC v Chihoro 1997 (1) ZLR 148 stated that

“What is a reasonable order must necessarily rest on the circumstances of each case--  It is not an offence to refuse to obey an unreasonable order, for such an order is not a lawful order.”

In this case the order not to use a wrench for tightening the nuts as the machine would at times fail to unscrew the nuts tightened by the wrench.

In the case of Mateveke v C T Bowring & Association (Pvt) Ltd 1987 (1) ZLR 206 it was also held that the existence of a moral excuse for disobedience does not make the employee’s disobedience any less wilful or the employer’s order any less lawful.  The appellant stated that he used the wrench for tightening because he was behind time.  This moral excuse does not make the appellant’s disobedience less wilful.

Section 3:3:15 (XVI) of the Unifreight Group Code of Conduct states that an offence of disobedience to a lawful order given by a person in authority calls for a penalty of summary dismissal.

From the foregoing it is this court’s opinion that the appellant wilfully disobeyed a lawful order given by a person in authority.  Therefore a penalty of dismissal is appropriate in the circumstances.

This court therefore finds that the appeal lacks merit and orders as follows

The appeal be and is hereby dismissed with costs.

Matsikidze & Mucheche, respondent’s legal practitioners