Last Chitima v William Bain and Company (Private) Limited

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/259/2014
HARARE, 1 APRIL 2014 & 9 MAY 2014
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/259/2014

HARARE, 1 APRIL 2014	& 9 MAY 2014		  CASE NO LC/H/492/2013

In the matter between:

LAST CHITIMA							         APPELLANT

Versus

WILLIAM BAIN AND COMPANY (PRIVATE) 		      RESPONDENT

LIMITED

Before The Honourable B S Chidziva	:	Judge

For the Appellant			T Tazvitya  (Legal Practitioner)

For the Respondent		Ms W L Chirongoma (Legal Practitioner)

CHIDZIVA J:

This is an appeal against the decision of the respondent to dismiss the appellant from employment after two hearings that were conducted at the workplace.

The brief history of the dispute is as follows:

The appellant was employed by the respondent on 1 October 2006 as a binner working in the stores department as shown by Annexutre “A” (i.e. the contract of employment). On 21 May 2013 the appellant was dismissed from employment after being charged with refusing to comply with a lawful instruction that was given by a person in authority. It was alleged that on Wednesday 15 May 2013 Mr A Vambe instructed Mr Chitima to paint several items which included cattle scale floor plates, mower tail wheels, hydraulic ram blocks and tobacco ridger brackets and he refused to carry out that duty.

The appellant appeared before the disciplinary committee which dismissed him from employment. On 29 May 2013 he appeared before the appeals committee which upheld the decision of the disciplinary committee hence this appeal to the Labour Court.

The appellant’s grounds of appeal are that:

He was wrongly charged because these duties were not part of his contract. The excuse was reasonable as the painting duties were not part of his contract. Furthermore he had complained that he had inhaled paint fumes because of inadequate protection.

On 20 May 2013 five respirators and ten cartridges were returned to J North after the appellant had complained about the defective protective wear. The appellant was suspended the same day and was dismissed the following day. The returning of the protectors to James North shows that there was a problem.

The respondent had no right to reassign the appellant without his consent as it amounts to unilateral variation of an employment contract.

The failure by other employees to complain about the defectiveness of the protective clothing cannot be a ground justifying the dismissal of the appellant.

The appellant therefore prayed for the following:

An order declaring that the dismissal was unlawful.

Reinstatement with full wages and benefits.

Back pay of salaries and benefits from the date of dismissal to today.

Or alternatively reinstatement with full wages and benefits and a warning.

Interests a tempo morae on each salary due, from the date of dismissal to the date of full payment.

Payment of costs incurred in pursuing this matter.

The respondent in response told the court that:

The appeal was filed out of time of time stipulated in the code of conduct. He was served with the letter of dismissal on 5 June 2013. The appellant should have filed the appeal within four days of determination.

The respondent prayed that the appeal should be dismissed as it is not properly before this court.

What is to be decided in this matter is:

Whether the appeal is fatally defective or not; and

Whether the appellant is guilty of committing the offence of disobeying a lawful order.

It is a trite principle of law that ignorance of the law is not a defence. The appellant has submitted that he is ignorant of Labour Court rules. The notice of appeal shows that the appeal was filed on 2 July 2013 which is well within the stipulated time in the Labour Court rules. It has always been stated that labour matters should not be determined based on technicalities but merits of the case. Even though the appellant failed to comply with the Code of Conduct in filing the appeal he complied with the Labour Court rules. In the circumstances therefore the appeal cannot be said to be fatally defective and that the court will proceed to deal with the merits of the case.

This court therefore is going to decide whether the appellant failed to obey a lawful order. McNALLY J in the case of Samkange v Wycombe Foundation 2001 (1) ZLR80 defined disobedience of a lawful order as follows:

“… the disobedience of a serious degree.”

GUBBAY JA/CJ (as he then was) in the case of Matereke v C T Bowning & Associates (Pvt) Ltd 1987 (1) ZLR 206 had this to say:

“… the words in my view connotes 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 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 case of Chironda v Swift Transport 1996 (1) ZLR 142 refusal to obey a lawful order was also defined as follows:

“Act must be deliberate, intentional, not occasioned by ignorance, inadvertence, accident physical disability. A mere failure to comply did not prove wilfulness unless the proved facts lead irresistibly to an intention to hold authority at a defiance. It is serious misdirection to hold that failure to comply, with an order is wilful.”

The appellant’s submission on defence to these allegations was that he could not paint the items in question because of defective respirators. He even visited the company doctor when he fell sick. From these facts it is very clear that the appellant’s action was not deliberate, or intentional. It can also not be said to be disobedience to a serious degree. His actions were not meant to undermine his relationship with the employer. He was being affected by defective respirators.

The appellant was employed as a “binner”. The Wikipeida free encyclopaedia describes a binner as follows:

“rag picker, reclaimer, informal resource recoverer, recycler, poacher, salvager, scavenger.

Furthermore the term binner is often used to describe individuals who collect recyclable materials for their deposit value.”

This description is far from a painter. Painting was not part of his employment contract. By ordering the appellant to paint without his consent was a unilateral variation of his contract of employment and this was unlawful. He therefore cannot be punished for failing to obey an unlawful order. The appellant was not obliged to obey the unlawful order.

In the result, the appeal is allowed with costs. The order of the respondent to dismiss him from employment is set aside. It is substituted with the following:

The appeal be and is hereby upheld.

The respondent, to pay costs of suit.

The respondent should reinstate the appellant with benefits and wages from the date of dismissal.

If reinstatement is no longer tenable the respondent should pay damages in lieu of reinstatement.

Parties to agree on the quantum of damages failure of which either party can approach this court for quantification.

Sibanda & Partners, appellant’s legal practitioners

C Kuhuni Attorneys, respondent’s legal practitioners