John Chikumbu v Zimbabwe Parks & Wild Life Management

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/39/2016
HARARE, 17 SEPTEMBER 2015 &
CASE NO LC/H/186/2015
22 JANUARY 2016
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IN THE LABOUR COURT OF ZIMBABWE	           JUDGMENT NO LC/H/39/2016

HARARE, 17 SEPTEMBER 2015 &			         CASE NO LC/H/186/2015

22 JANUARY 2016

In the matter between

JOHN CHIKUMBU								APPELLANT

Versus

ZIMBABWE PARKS & WILD LIFE					RESPONDENT

MANAGEMENT

Before the Honourable E Makamure J

For the Appellant	W Madzimbamuto  (Legal Practitioner)

For the Respondent	Ms R Makuva (Legal Officer)

MAKUMURE J:

This is an appeal against the respondent’s appeals committee (“AC”) decision. The AC confirmed the appellant’s conviction of a charge of deliberate refusal to carry out a lawful instruction given by a person in authority. This was a violation of section 3.5.1 of the respondent’s Code of Conduct. He appeals to this court on the following grounds:

“1. 	The Disciplinary Authority and/or the Appeals Committee grossly erred at law in concluding that the appellant had committed a serious misconduct when he exercised his right under section 3.5.1 (ii) of the Code of Conduct entitling him to seek an independent assessment of another officer if the appellant perceives the instruction of the Senior Wildlife Officer to be unsafe.

2.	Thus the Disciplinary Authority and/or the Appeals Committee grossly erred in failing to appreciate that the instructions from the Senior Wildlife officer to ‘go and react to an incursion’ would be unsafe as there was the real danger of exposure to tsetse fly bites that causes the deadly disease called tryponosomiasis.

3.	The Disciplinary Authority and/or the Appeals Committee grossly erred in failing to appreciate that there was unnecessary splitting and/or multiplicity of charges emanating from the circumstances described above and which further charges are however denied as the Appellant was simply exercising his right under section 3.5.1 (ii) of the Code of Conduct.

4.	The Disciplinary Authority and/or the Appeals committee grossly erred in failing to appreciate that in dealing with this nature of case the Organisation Policy No HWS- 001 HEALTH, SAFETY & WELFARE as updated April 2008 providing took the highest priority providing among other things that:-

Policy

ZIMBABWE PARKS & WILDLIFE MANAGEMENT AUTHORITY shall furnish its Employees with working conditions, which are free from recognised hazards that may cause death, physical harm, or illness.

5.	Accordingly, the Disciplinary Authority and/or the Appeals Committee grossly erred in accepting the Area Manager’s thinking that the instruction to go and react to an incursion takes precedence contrary to the organisation’s policy which places issues of occupational health and safety at the highest priority.

6.	The Disciplinary Authority and/or the Appeals Committee conducted itself in clear circumstances justifying bias which renders the proceedings a nullity.”

In the grounds of appeal mention is made the appellant’s entitlement to exercise his right in terms of the respondent’s Code of Conduct. Paragraph 3.5.1 of the applicable Code provides as follows:

“Disobedience

Deliberate refusal to carry out a lawful instruction given by a person in authority.

Failure to obey lawful instruction given by a person in authority. NOTE: Where any employee perceives the instruction to be unlawful or unsafe independent assessment of another official would be sought.”

The facts of this matter are largely common cause. They are as follows. The appellant was employed by the respondent as a ranger. He had been so employed for a period in excess of six years. The area of operation was infested with tsetse flies and wild life including dangerous animals. The appellant was instructed to go and react to an incursion that is, conducting anti-poaching patrol. He refused to do so. When asked to write a report to explain his refusal, he refused. As a result disciplinary proceedings were conducted against him. He was convicted. His appeal to the appeals committee failed.

It is noted that the appellant in his first ground of appeal suggests that he was exercising his right in terms of paragraph 3.5.1 (ii) quoted above. If this is what he meant when he refused, then when he was asked to write a report, he should have explained this to his employer. To belatedly refer to it at appeal level cannot be supported as it was never dealt with by the employer itself. Further and as correctly submitted on behalf of the respondent, if he had a grievance, the appellant ought to have followed the appropriate grievance procedure. When an employee has a grievance against his or her employer, he should firstly comply with any order given and then, or at the same time, institute grievance procedures. As noted earlier the appellant was not a novice in the job. He has always been aware of the dangers associated with the nature of work he was contracted to perform. As such he could not abruptly as he did, without explanation, refuse when asked to perform the duties in question. Munyaradzi Gwisai, in Labour & Employment Law in Zimbabwe at p 79 states that:

“Workers in inherently dangerous jobs are assumed at common law to have voluntarily assumed risk of reasonably foreseen danger that may befall them, and the employer is not liable if it has taken reasonable steps to prevent harm – the volenti non fit injuria doctrine. ( In Kwaramba v Bain Industries (Pvt) Ltd SC 39-01 a welder developed a skin disease, which her doctor said was probably due to heat from her workplace. When she refused to continue working in such environment she was dismissed for failure to provide service and the court upheld the dismissal).”

The law on wilful disobedience is clear. In Matureke v C T Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S) the Supreme Court stated as follows:

“… the words in my view connote a deliberate and serious refusal to obey. Knowledge and deliberateness must be present … It must be such 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 the present case the appellant refused to carry out the order. When asked to explain his refusal in writing, he refused. This shows that both knowledge and deliberateness were present. Thus had the appellant explained his refusal, at least his superior would have known what his concerns were. It is my considered view that both the first and second grounds of appeal have no merit.

The third ground of appeal deals with the unnecessary splitting of changes. The AC convicted the appellant of the violation of paragraph 3.5.1. only. This therefore means that they were alive to the circumstances of the matter. It is the AC’s decision which has been appealed. Therefore the question of splitting of charges does not arise. Grounds four, five and six deal with bias by the respondent’s area manager. The facts are common cause, so even if bias were to be alleged, the present facts speak for themselves. Bias would have no room. Besides bias is a procedural issue which should properly be dealt with by way of review. For that reason those grounds are not properly before me.

Having stated the above, I find that there is no merit in all the grounds of appeal. The appeal must fail.

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

Nyiikadzino & Simango, appellant’s legal practitioners