Guardian Security v Albert Dzvakakuyambwa

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/137/2016
HARARE, 14 JANUARY 2016
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE	                JUDGMENT NO.  LC/H/137/2016

HARARE, 14 JANUARY 2016			           	CASE NO. LC/H/518/15

AND 4 MARCH 2016

In the matter between:-

GUARDIAN SECURITY				Appellant

And

ALBERT DZVAKAKUYAMBWA			Respondent

Before The Honourable E. Makamure, Judge

For Appellant		Mr C.Z. Chikara (Legal Practitioner)

For Respondent		In person

MAKAMURE, J:

This is an appeal against a decision by an arbitrator.  The grounds of appeal are that:

The Learned Arbitrator erred at law at in failing to find that the respondent was guilty of wilful obedience to a lawful order.

The Learned Arbitrator erred in failing to find that there were no mitigatory circumstances and that dismissal was the appropriate penalty.

The respondent was employed by the appellant as a security guard.  He was performing his duties at Delta, Mvurwi which is one of the appellant’s clients.  During the performance of his duties he caused the arrest and subsequent dismissal of one of Delta’s senior employees.  There after the relationship between him, and some supervisors and managers there became strained.  They (the senior employees at Delta) would not return his greeting.  He brought this to the attention of his Human Resource Manager, a Mr Mutsvakiwa.  Mr Mutsvakiwa encouraged him to continue greeting the supervisors even though they appeared hostile.  Appellant sought a transfer stating that the working environment was unbearable or hostile.  He was denied such transfer.

On the day in question at 3.10 hours the Delta’s Operations Manager a Mr Nkuziwalela, came to the post/workshop which was guarded by the appellant. He asked for reflective tapes.  There were none.  The store room was locked so there was no one to issue out the said reflective tapes.  An argument ensued between the Operations Manager (Manager) and the appellant.  The Manager asked the appellant to go and call another security guard who was manning another point.  The appellant refused to leave his post because this was contrary to instructions from his employer, the appellant

.

The above resulted in the appellant being disciplined for

an act of conduct or omission inconsistent with the fulfillment of the express on implied conditions of his/her contract of employment and

wilful disobedience to a lawful order.

These were violations of sections 4 (a) and 4 (b) of the National Code of Conduct Statutory Instrument 15/2006.  He was convicted of both and dismissed.  He was aggrieved by the decision and the matter was referred to arbitration for:

“Alleged unfair dismissal.”

The Learned Arbitrator’s finding was that the appellant acted within the confines of his duties and refused to leave his post unattended since this would jeopardize his job “considering that everyone is a suspect when it comes to guarding duties.”

As the arbitrator correctly found there was no independent witness but the facts are common cause.  What is unfortunate is that there were preexisting tensions between the parties.

Once the Learned Arbitrator had made a finding that the respondent refused to obey the instruction because he feared to jeopardize his job that should have been the end of the matter.  In essence he was saying that the disobedience was not unlawful.

The Learned Arbitrator then proceeded to consider the appropriate penalty. I will comment in passing that the Supreme Court has stated that where an employer has taken a serious view of an employee’s misconduct to the extent that it considered dismissal appropriate, an appeal court should not interfere with that discretion unless the discretion has been improperly exercised [see Circle Cement (Pvt) Ltd v Chipo Nyawasha SC 60/03].  However the question of penalty will not be considered further in view of the following.

In the circumstances at this case, I believe that the respondent was placed between a “rock and a hand place” so to speak. The operations manager was a person wielding a lot of power and authority at Delta.  At the same time the appellant was duty bound to abide by the standing instructions from his employer.  He was, according to his narration not allowed to leave his post unguarded. And by unguarded I understood the appellant to say that he could only leave that post under the guard of another authorized security guard.  This particular morning, at around 3.00am, Mr Nkuziwalela ordered him to go and call one Solomon.  From what had transpired there was no reason proffered for this Solomon to be called except that Mr Nkuziwalela was demonstrating or stamping his authority to a junior person.  Solomon was not the person who had keys to the place where the reflectors were.  But most importantly the respondent was under instructions not to leave his post.  I did not hear the appellant to deny this assertion.  In other words the lawful instruction he had was to guard and stay put at the station he was deployed to.  Orders outside these instructions should have been directed to the security company, that is the appellant, so that the appellant would direct a person in the position of the respondent on how to handle it.  In the event that anything went wrong while the respondent had gone to call this Solomon, respondent would have been held liable since he was the only guard on that post. This is the eventuality that the respondent was trying to avoid.

In Matereke v C T Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC) “Wilful disobedience” of a lawful order given by the employer was held to mean

“Such disobedience as to be likely to undermine the relationship between employer and employee, going to the root of the contract of employment.  Knowledge and deliberateness and an intention to disobey must be present, and the disobedience must be serious and not trivial.”

In the context of the respondent’s circumstances, he had an obligation to abide by the instructions which he was given by the appellant his employer.  He did just that. What this means is that the order by Mr Nkuziwalela at 3.00 am to open a room which he had no keys for or to go and physically summon another security guard from their post leaving his own post unguarded, amounts to an unlawful order.  The refusal was not deliberate.  The respondent was duty bound to obey the instruction from the appellant and not from Mr Nkuziwalela.  In the result while the Arbitrator was of the view that there was a degree of wilful disobedience warranting a penalty lesser than dismissal, I am of the considered view that the order was not only unlawful but was incapable of being performed.  This is because of the respondent’s peculiar circumstances and the time of day that the demand was made of him.  In Muchakata v Nethburn Mine 1996 (1) ZLR 153 (SC) an assistant personnel manager instructed a security sergeant to take disciplinary actions against persons junior to him who had commended various breaches. The security sergeant refused because a person at his level was not authorized to preside over disciplinary cases. This resulted in him being disciplined and dismissed for refusal to comply with lawful order.  On appeal, the Supreme Court held that: “What the appellant was being required to do did not fall within the parameters of his contract of employment.  It was ultra vires that contract; the management had no authority to give such orders and the appellant was under no duty to obey them, even if they had not been so blatantly unreasonable.”

Equally in the present case, Nkuziwalela had no authority to require the appellant to perform a duty which was outside his terms of contract.

Having stated the above I am supportive of the Arbitrator’s finding on the respondent’s conduct.  I find no error in the finding by the Arbitrator this respect.  As indicated earlier the order was unlawful.  Therefore the appellant was not in wilful disobedience of that order.

In the result I find that there is no merit appeal. The award by the Arbitrator is hereby confirmed.

Accordingly it is ordered that the appeal be and is hereby dismissed with costs.

Dhlakama B. Attorneys, Appellant’s legal practitioners.