Brian Mushaninga v British American Tobacco

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/299/2013
HELD IN HARARE, MAY 16, 2013
CASE NO. LC/H/30/2011
In the Matter Between
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IN THE LABOUR COURT OF ZIMBABWE 	JUDGMENT NO. LC/H/299/2013

HELD IN HARARE, MAY 16, 2013			CASE NO. LC/H/30/2011

In the Matter Between

BRIAN MUSHANINGA					       	APPELLANT

And

BRITISH AMERICAN TOBACCO			       		RESPONDENT

Before The Honourable E. Makamure         : President

FOR THE APPELLANT     		: In Person

FOR RESPONDENT		  	: Mr R. Maunganidze (Legal Practitioner)

MAKAMURE E.,

The appellant was dismissed from the respondent’s employ for wilful disobedience to a lawful order given by his superior.  It is common cause that the appellant was asked to write a report by his superior.  He did not do so despite reminders for him to comply with the order.  He only did so some months later.  Clearly that was wilful disobedience of a lawful order given by someone in authority.  The appellant was aggrieved by the dismissal.  He appealed internally.  The appeal failed.  He has now appealed to this Court on the following grounds:

Procedural unfairness

The Works Council has no jurisdiction over the case as 30 days has surpassed.

The Dismissal was Substantive unfair (lacks merit)

2.1	The charges are emanating from a single set of facts, double jeopardy.

2.2	N.E.C. erred by not acting that a report was submitted, however, it was delayed because I was always in the field.

2.3	They failed to see that the report was finally done in Mutare were the details of banking where.

2.4	N.E.C. erred by failing to observe that there was intention to dismiss by the employer as FIVE charges, “all dismissable” were preferred, this is against the spirit and intention of the Code, which is corrective rather than punitive.

2.5	The Company refused to release my witnesses and they did not make any efforts to recall him back and therefore relevant evidence was not presented.

The appellant’s refusal to obey the lawful order goes to the root of the employment contract as envisaged in the case of  Matereke v C.T. Bowring & Associates (Private) Limited 1987(1) ZLR 206 (SC).  Once an employee shows utter disdain to instructions from his superior, he becomes impossible to manage.  That is not in keeping with peace and harmony expected at the work place.  Such an employee no longer has a place at the workplace.  He must make way for those who want to work and are co-operative with the superiors.  The appellant has proved himself to be insubordinate by refusing to obey a lawful instruction.  His conduct is unacceptable.

It is noted that some errors may have occurred during the course of the disciplinary process.  However, the procedural errors were they corrected, would not cure the guilt of the appellant.  What this means is that even if the matter were to be remitted for the employer to conduct the proceedings in a procedurally correct manner, this would be just an academic exercise with nothing meaningful being achieved for both parties.  Further, the said irregularities were not fatal to the proceedings.  (See Mende Wilson Nemakonde v The Magistrate Chinhoyi  H.C.H 191/2008).  The employer substantially complied with the provisions of the applicable code.

In view of the foregoing I find that there is no merit in the appeal.

Accordingly it is ordered that the appeal be and is hereby dismissed.  There shall be no order as to costs.

The Appellant In Person

Chihambakwe, Mutizwa and Partners Legal Practitioners, Representatives for the Respondent.