Caroline Marevanyika v Croco Holdings (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO.LC/H/631/14
HELD AT HARARE ON 17th JUNE, 2014
CASE NO.LC/H/1039/13
AND 26TH SEPTEMBER, 2014
JUDGMENT NO. LC/H/631/14
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO.LC/H/631/14

HELD AT HARARE ON 17th JUNE, 2014   CASE NO.LC/H/1039/13

AND 26TH SEPTEMBER, 2014

In the matter between:-

CAROLINE MAREVANYIKA 						APPELLANT

AND

CROCO HOLDINGS (PRIVATE) LIMITED			RESPONDENT

Before the Honourable G. Mhuri, Judge

For Appellant: 	Mr. T. Mboko (Legal Practitioner)

For Respondent: 	Mr. I. Chagonda (Legal Practitioner)

MHURI J.:

This is an appeal against the Appeal Committee’s decision upholding the Disciplinary Committee verdict and penalty of dismissal.

Appellant was employed by Respondent and at the time charges were levelled against her she was a vehicle sales administrator.

For not attending a performance appraisal interview,  Appellant was charged with wilful disobedience to a lawful order given by a superior.  This was in terms of section 9.(57) of Respondent’s Code of Conduct.  The Disciplinary Committee found the charge as proved and imposed a dismissal penalty.

Appellant felt aggrieved and appealed to the Appeals Committee which confirmed the verdict and penalty.

Still aggrieved, Appellant approached this Court appealing against the Appeals Committee’s decision on the following grounds:-

The Appeal’s Committee grossly erred in upholding the guilty verdict despite overwhelming evidence that the charge was not proven.

The Appeal’s Committee grossly erred in upholding the decision of the Disciplinary Committee despite over whelming evidence that it relied on evidence which was not applicable to the Applicant (Appellant).

The Appeal’s Committee misdirected itself in upholding the decision of the Disciplinary Committee despite the fact that parties were not given an opportunity to address on the evidence which was relied upon by the Disciplinary Committee.

The Appeal’s Committee grossly misdirected itself when it found that it could not impose a lesser penalty despite the presence of overwhelming and compelling mitigatory factors.

The evidence which was placed before the Disciplinary Committee which is generally common cause is that a performance appraisal for the period April to June 2013 between Appellant and her superior Mr. Sundayi was due.  There was communication in that regard between the two which resulted in Appellant filling in appraisal forms and submitting them to Mr. Sunday.

Thereafter Mr. Sunday communicated with Appellant verbally and in writing for her to attend the appraisal interview.  A deadline for the interview was given.  Appellant did not attend.  The reason given thereafter by Appellant was that there was no job description as she had not been availed with one.  It later transpired that a job description duty acknowledged by Appellant was actually in her personal file.

The well known case dealing with wilful disobedience of a lawful order given by an employer is the case of –

MATEREKE V C.T. BOWRING AND ASSOCIATES (PRIVATE) LIMITED 1987 (1) ZLR 206(S).

This case defines and aptly lays down the elements of this charge.  At page 211 G-H the Supreme Court had this to say

“…The words in my view connote a deliberate and serious refusal to obey.

Knowledge and deliberateness must be present.

Disobedience must be intentional and not the result of mistake or inadvertence.  It must be disobedience in a serious degree and not trivial – not simply an unconsidered reaction in a moment of excitement.  It must be disobedience as to be likely to undermine the relationship between the employer and employee going to the very root of the contract of employment.”

In summary, there must be a lawful order, given by a person in authority.  There must be deliberate disobedience of the order, which disobedience undermines the relationship between the two.

The existence of a moral excuse was held not to make the order any less lawful or the disobedience any less willful.  The case of –

TURNER V MASON (1845) 14 M & W 112; 153 ER 411.

was cited with approval in the Matereke case supra in which a domestic servant, deliberately absented herself from duty because her request to attend to her sickly mother had been rejected, it was remarked that even if the employer had been made aware of the cause of her request to absent herself, it would not have been sufficient to justify her disobedience of the order.

In casu, Mr. Sundayi was Appellant’s superior.  It was not Appellant’s case that he was not a man in authority. In that capacity he gave an instruction, not only once that Appellant should avail herself for an appraisal interview.  She did not.

The fact that Appellant filled in and submitted the appraisal form is neither here nor there.  It is to be accepted that an order does not only relate to what is to be done.  It also can relate to when (time) that which is ordered to be done, is to be done.  In casu, it was not disputed, an interview was supposed to be done by a certain day.

The instruction which was disobeyed was the call for an interview.  The instruction related to the employee’s work performance.  Appellant for the reason that there was no job description, chose not to attend the interview.  This was deliberate on her part.  The reason preferred by Appellant for not attending the interview was only communicated after having already defied the instruction.

This excuse cannot absolve Appellant.  Despite the absence of the job description, Appellant should have complied with the order by attending the interview, raise the issue therein or attend the interview and separately raise a grievance.  This she chose not to do, intentionally so, despite the fact that previous appraisals were conducted in the absence of the said job description.

Considering the above, I find that all the elements of the charge as enunciated in the Matereke case (supra) apply in this case.  Under the circumstances, the Appeals Committee had no reason not to confirm the Disciplinary Committee’s otherwise unassailable findings on the guilt of Appellant.

Admittedly, the Disciplinary Committee had an occasion to look at Appellant’s personal file and observed that the job description was filed therein.  This was done to prove the veracity or otherwise of Appellant’s excuse for defying the order.  This in my view was not the basis of the guilty verdict.  The Disciplinary Committee as the record shows, incoming up with its deliberations considered the elements as stipulated in the Matereke case, and found that they applied in Appellant’s case.  In that regard, with or without having had sight of Appellant’s personal file, still the Appellant’s guilt would have been proved.  In its findings the Disciplinary Committee had this to say:-

“The Court noted that the existence of a moral excuse or grievance does not make the disobedience any less willful and the order any less lawful.”

Having noted the above principle, the Disciplinary Committee found that the issue of the outstanding job description did not prevent the employee from heeding the given instruction.

The Disciplinary Committee, having found Appellant guilty as charged, required of the parties to address it in mitigation and aggravation.  The parties obliged.  Before imposing the penalty, the Disciplinary Committee considered these submissions and found that the aggravating factors far outweighed the mitigatory factors.  It stated –

“Even if the Committee were to be persuaded to accept some factors in mitigation the accused’s moral blameworthiness remained high and she cannot be absolved of the charges ….

The submitted mitigatory factors do not outweigh the aggravating factors.”

After considering the mitigating and aggravating factors and having made the above findings, the Disciplinary Committee found dismissal being the appropriate penalty.  This was a judicious exercise of discretion by the Disciplinary Committee which the Appeals Committee had no legal basis to interfere with see the case of – TREGERS PLASTICS PVT LTD v WOODRECK SIBANDA & ANOR SC 22/12

Overally I find that the act of misconduct was proved and the Appeals Committee was correct in upholding the Disciplinary Committee’s verdict and penalty.  To that end, the appeal cannot be allowed.

Accordingly, it is ordered that the appeal being devoid of any merit, it be and is hereby dismissed with costs.

Donsa-Nkomo – Appellant’s Legal Practitioners

Atherstone and Cook – Respondent’s Legal Practitioner