J Romo v P.G. Timbers

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/196/14
HELD AT HARARE 18TH MARCH 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/196/14

HELD AT HARARE 18TH MARCH 2014			CASE NO LC/H/519/12

& 28TH MARCH 2014

In the matter between:-

J ROMO						Appellant

And

P.G.TIMBERS					Respondent

Before The Honourable L Kudya, Judge

For Appellant		G Madzoka (Legal Practitioner)

For Respondent		P Ncube (Legal Practitioner)

KUDYA, J:

This is an appeal against the decision of the respondent company’s disciplinary hearing committee which dismissed the appellant from its employment on allegations that he had contravened the industry Code of Conduct, in particular that he had wilfully disobeyed a lawful order.

Facts of the case are that the appellant who was in the respondent’s employment as an assistant supervisor was brought before a disciplinary committee after he had failed to sign documents issued under the hand of the employer informing him of the employer’s intention to transfer him to a new work station and to have his position at work changed following the employer’s organogram reorganisation.  He however reported to the new duty station but did not sign the above stated documents.

It is that failure to sign the documents which he was charged for, found guilty of and subsequently dismissed from work for.   Aggrieved by the dismissal he has now appealed to this court and it is that appeal which is the subject matter of the instant judgment.

For completeness of record it is important to point out that this case has been riddled with applications, counter-applications and objections since as far back as 2012 and all have been concluded as borne out by the judgments filed of record on each of the applications or the objection raised. The instant judgment will therefore not repeat what was held in the other judgments but will only dwell on the merits of the main appeal.

The basis of the appeal was to the following effect:

Appeals Committee erred at law to confirm the disciplinary committees finding that appellant was guilty of disobeying a lawful order yet there was no evidence to prove that.

Appeals Committee erred at law and in fact to find that the instruction given to appellant in the form of a demotion letter and transfer letter which were both tainted with illegality constituted lawful instructions.

Appeals Committee erred to find that appellant deliberately and wilfully refrained from signing the letters yet there was no evidence to show that.

Appeals Committee erred to find that appellant worked under protest yet that finding was unrelated to the matter which was before it.

Appeals Committee erred to find that the disobedience was of a serious nature yet it was just trival if it had been proved.

Appeals Committee erred by failing to consider the appellant’s excellent disciplinary record which factors would have persuaded it to have appellant penalised more leniently.

Appeals Committee erred by not appreciating that the company did not suffer any prejudice from appellant’s refusal to sign the letters in question.

In response to the appeal, the respondent maintained that;

There was evidence that appellant did not sign the letters hence the appeals committee did not err in finding so.

The Appeals Committee did not err in holding that the instruction was lawful because appellant was supposed to sign the letters as such an instruction was lawful and capable of being complied with.

Appellant’s refusal to sign the letters was wilful and his conduct showed that his refusal was wilful.

The evidence before the Disciplinary Committee showed that the appellant worked under protest

Offence was serious and warranted a dismissal penalty hence the Appeals Committee did not err in upholding such a penalty.

Dismissal was appropriate since appellant walked out without submitting in mitigation and the Disciplinary Committee had no obligation to have appellant mitigate but such obligation lay with the appellant.

Respondent suffered prejudice as a result of the appellant’s refusal to comply with a lawful order.

In the result the respondent prayed that the appeal be dismissed as

in its view the appeal was without merit.

Before addressing each ground in turn it is important to note that the fact that the appellant did not sign the letters is apparent from the record.  It is clear from the letters that the portion which he was meant to sign was not signed hence no major issue arises out of that what is however pertinent on that point is whether he was obliged to sign or whether his failure to do so can be read to be a wilful disobedience to a lawful order.

Each of the grounds of appeal will thus be addressed in turn below

Both parties correctly submitted what constitutes wilful disobedience to a lawful order by their reference to the leading case of Matereke  v C.T. Bowing and Associates Pvt Ltd 1987 (1) ZLR 206 (SC).  From that case it was imperative that the following elements be present before it could be concluded that the appellant disobeyed a lawful order.  The instruction had to be lawfully given by the employer, capable of being carried out by the employee, for the advancement of the employer’s business, is closely related to the employers duties and is not wrongful.  See also ZCTU v Makonese SC-141-04 quoted by the appellant on the elements of wilful disobedience to a lawful order

Ground One

As regards this ground what was at stake was the fact that the documents which transferred and changed appellant’s position were not signed by the appellant but he did act as instructed by the documents in question.  All that he did not do was to acknowledge the said documents by signing them.

A further reading of the record shows that even though he reported to the new station as per the transfer letter he however had misgivings about the transfer which had not only came once but even before the last letter had previously letters in intending to retrench him and to transfer him to Bulawayo even though these were not eventually effected.  He consequently wrote about his misgivings to the employer as borne out by his letter to that effect filed of record.

The respondent argues that the appellant just had to sign the documents for their administrative records.  It however seems to lose sight of the fact that the document clearly stated that if he was in agreement and understood them he had to sign them.

Here was an employee who was not happy with the letters in question and was ever asking the employer to reconsider its decision.  How then could he have been expected to sign the said documents.  In any event the material part of the letter was the instructions component which he duly complied with this making the appellant’s signature not paramount.

Even if the court were to accept that indeed the signature part was indeed a component of the letter which appellant did not sign the court’s view is that the failure to sign coupled with his compliance with the contents of the letters makes the non signing a non event not capable of being elevated to a wilful disobedience of lawful order.  This ground being with merit should succeed.

Ground 2

On this ground respondent maintained that it is the employer’s prerogative to transfer and since the appellant’s conditions of service remained the same there was no demotion hence his failure to sign the documents constituted an offence.  As already stated above the signatures cannot be dealt within isolation of the instruction in the letters which the appellant complied with.  For the same reasons as in ground one above the court is satisfied that ground 2 is merited and it has to succeed.

Ground 3

This ground is intricately linked to grounds 1 and 2 above and deserves no further comment than to say that the act complained of was trivial in at nature of if viewed from the backdrop of the appellant’s compliance with the main instruction.  The ground therefore also should succeed.

Ground 4

Appellant indicated by the letter that hewrote to the employer that he was not happy with the transfer and the change of grade arrangement but nevertheless reported to the new station.  That showed compliance with the order hence the protest issue becomes of no consequence in the decision as to whether he disobeyed a lawful order.  The ground also being merited should succeed.

Ground 5

This ground deserves not further comment than that given in ground one and it should also succeed.

Ground 6

If the penalty is viewed within the background of the trivial nature of the infraction it therefore becomes difficult to envisage how a dismissal penalty could be supported notwithstanding the fact that penalty is the discretion of the employer.  This ground also merited should succeed.

Ground 7

There was a bold assertion of prejudice by the respondent.  Appellant did report to the new station hence the court fails to appreciate the prejudice that the respondent would argue ensued to it.  The ground also being merited should also succeed.

In the ultimate it is clear that all the appeal grounds are with merit and the appeal should accordingly succeed in its entirety.

Before concluding the matter there are  a few issues which need to be placed on record for completeness of the same.  As the submissions progressed the respondent indicated that it needed to call evidence to show that after the appeal had been noted with this court parties engaged in negotiations where a reinstatement offer was made to the appellant but with him being posted to a new station.  Such evidence was led and the respondent indicated that it wanted the court to consider this so that in the event that appeal succeeds and the court orders damages consequently such have to be reduced on account of the spawned offer of reinstatement.The appellant argued that since offer was not on same terms as original position held by appellant such an offer was of no consequence and it should not exercise the mind of the court.

The court observed that this component was more an issue for quantification than for the main claim but allowed it to be on record on account of the respondent’s indication that if court stipulated damages it may become important to note it.  What was clear from the evidence was that the reinstatement meeting was done on a without prejudice basis hence it would be improper to hold any of the parties to what ever was discussed then.

If the court was to take it into account seriously it could also formulate the impression that the reinstatement offer showed that respondent accepted that it had wrongfully dismissed the employee.  That would be unfair to the respondent.  In the same spirit the court can also not attach any weight to the so called post appeal reinstatement discussions as that is of no force or effect in the instant case.

In the main, appeal being merited it should succeed.

IT IS ORDERED THAT

Appeal being with merit in its entirety it be and is hereby allowed with costs.

L KUDYA

JUDGE – LABOUR COURT