Laurence Dube v Monte Clair Hotel And Casino

IN THE LABOUR COURT OF ZIMBABWE            JUDGMENT NO.LC/MC/15/2013
HELD AT MUTARE ON 20th MAY 2013             CASE NO. LC/MC /13/12


In the matter between



LAURENCE DUBE                                Appellant


And
MONTE CLAIR HOTEL                             Respondent
AND CASINO


Before The Honourable L Kudya, President


For Appellant           - Mr M. Makoni (Legal Practitioner)
For Respondent          - Mr C. Mucheche (Legal Practitioner)




KUDYA .L



      The Appellant lodged an appeal with this court to have it overturn the

decision of the Respondent‘s internal Appeals Committee which confirmed his

dismissal following allegations of willful disobedience of lawful orders given by

his superiors.

      The facts of the case deserve elaborate mention because the allegations

of disobedience arose within the context of these facts. In essence it is the

attendant challenges raised by the Appellant on the orders in question which

gave rise to the allegations which saw his dismissal.



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      The Appellant got into the Respondent’s employ in 2006 as an Accountant

reporting to the General Manager. This was in line with his contract of

employment and job description, both documents which are filed of

record .Some time in 2011 the Respondent brought in a new management

team styled H.A.LA.

                                             JUDGMENT NO.LC/MC/15/2013

      When this happened the employees were assured that nothing would

change in terms of their working conditions. Contrary to the assurance, when

the new management team began executing its mandate confusion arose as to

the roles of the old management and the new management. This resulted in

change of roles and reporting structures etc. to the extent where Appellant in

particular was now meant to report to the Finance Manager whom he felt was

subordinate to him.

      Appellant was made to share functions, the office and other facilities with

the Finance Manager. This confusion did not go down well with the Appellant

who then wrote to the General Manager as required by the Respondent’s Code

of conduct .He raised a grievance on that and sought clarification about the

confusion which had been brewed by the new state of affairs at the hotel.

      The General Manager in correspondence filed of record replied Appellant

to the effect that the grievance was beyond her capacity in which case she

wrote to the Board Chairman redirecting the Appellant’s grievance. Contrary to

how grievances were supposed to be handled as per the Respondent’s Code of

conduct, the Board Chairman wrote to the Appellant advising him that if he was

unhappy with the new set up he was free to leave his job.

      Before the Appellant could challenge the Chairman’s letter, he was

slapped with charges of failing to obey lawful instructions by the Finance
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Manager. These instructions were coming from the Finance Manager who had

been introduced by the new system, who had taken on some of the Appellant’s

responsibilities and tools of trade. The instructions in question pertained to the

very issue which the Appellant had raised as his grievance regarding the new

operations.

      He was brought before a Disciplinary Committee which found him guilty

of the charges of failing to obey lawful instructions and dismissed him. His

appeal to the internal structures yielded the result of confirmation of his

dismissal. Aggrieved by this, he appealed to this court challenging his dismissal.




                                              JUDGMENT NO.LC/MC/15/2013

      The basic argument which the Appellant maintained in this appeal is that

he did not disobey any lawful order as there was no such lawful order to

disobey. He says the very issue that he had raised as a grievance is the very

issue which was twisted into a disciplinary hearing to remove him from his job.

      To that extent he maintained that the order from the Finance Manager

was an unlawful one for the reasons stated in the facts hence he was not under

any obligation to obey it. His view is therefore         that he was dismissed

improperly from his job. In that light he prayed that his dismissal be set aside

and it be substituted by an order reinstating him to his original position without

loss of salary or benefits or alternatively that he be paid damages in place of

reinstatement if reinstatement is no longer possible.

      On the other hand, the Respondent in its response maintained that the

Appellant was obliged to obey the order given to him notwithstanding the fact

it was the very issue which he had raised as a grievance which had not been

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addressed as provided for by the Respondent’s Code of conduct. In essence, the

Respondent maintained that disciplinary proceedings are mutually exclusive of

grievance procedures. In its view Appellant caused his own dismissal by

refusing to obey the order by the Finance Manager and is thus not entitled to

the relief which he is seeking from the court.

        Both Counsels filed lengthy well researched heads of argument on the

matter. However the simple issue at stake was whether indeed it can be said

that Appellant disobeyed a lawful order or not warranting his dismissal .On the

day of hearing both Counsels made oral submissions highlighting the strength

of each party’s position. Respondent’s Counsel in particular cited a plethora of

cases    showing   among    other   things,      what   conduct   connotes   willful

disobedience, how serious the offence of willful disobedience is in relation to

the contract of employment and the fact that notwithstanding an employee’s

dissatisfaction with certain conditions of his employment that such would not

be an excuse to disobey instructions lawfully given

                                       JUDGMENT NO.LC/MC/15/2013

by the employer.

          Of particular note he cited the cases of Samkange vs Wycombe

Foundation SC 10/01 and that of Matereke vs CT Bowring and Associates Pvt

Ltd 1987 (1) ZLR) 206(SC) where the Supreme Court underscored the

seriousness of the offence of willful disobedience and the fact that in some

cases even if the Appellant has a genuine grievance that would not be an

excuse to willfully disobey a lawful instruction from his employer.

        After going through the wealth of quoted cases and all the submissions

made the court came to the following conclusions. It is worth noting that the

facts of the Appellant’s case are clearly distinguishable from the facts in the
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long line of cases quoted by the Respondent’s counsel. This is so because in the

instant case the Appellant did receive instructions but those instructions came

from the Finance Manager who was not his superior in terms of his contract of

employment and job description. To that extent, whatever instruction came

from that person, the Appellant was not obliged to obey it.

      In any event, the occurrence speaks for itself that the charges were

clearly calculated that since they arose to thwart what Appellant had raised as

his discontent about the chaos introduced by the new management set up. The

impression created is that, the charges were calculated to eliminate him from

his job for raising the grievance about the new management set up hence

charges had to be crafted that he had failed to obey lawful instructions.

      It would have been a different scenario if the orders in question had

emanated from the General Manager who by the terms of his contract he was

obliged to obey. The argument that certain explanations were proffered by the

Board Chairman to the effect that the new arrangement was not being foisted

on the employees has no basis. This is so because the confusion which was

bred by the new structure had the effect of altering the conditions of the

employees’ contracts which is contrary to the spirit of section 16 of the Labour

Act. Even though the facts at hand were not about a transfer of undertaking in

the strict sense of the word , the introduction of H.A.L.A was synonymous with

the situation contemplated by Section 16 hence its provisions accordingly

apply with equal force to these facts.

      The Appellant correctly observed that the Board Chairman usurped the

powers of the grievance committee provided for in the Code to tackle

employee’s grievance. His letter to the Appellant could not in any way clothe the

Finance Manager’s instruction with legality. The court is satisfied that the


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Appellant was perfectly within his rights to disobey an unlawful order as stated

in the case of Matereke (Supra)

      There was no basis at law to dismiss Appellant from his employment. In

that light, even the invitation by the Board chairman for him to quit was not

within what is permitted by the Labour laws of the country. The Respondent

could not create unfavourable working conditions to oust the Appellant then

ask him to give up his job as if he were doing so on his own volition yet the facts

clearly point to the contrary.

It is clear from the above that the Appellant did have a good case for appeal.

The appeal should accordingly succeed in its entirety.

It is therefore ordered as follows

      1. That the appeal being with merit be and is hereby upheld with costs.

      2. The order of the Respondent’s internal Appeals Committee confirming

      Appellant’s dismissal is set aside.

      3. Appellant is reinstated to his former position with full salary and

      benefits from his date of suspension. If reinstatement is no longer

      possible, Respondent is ordered to pay the Appellant damages in place of

      reinstatement.

      4. The parties are to agree on the quantum failing which either party is

      free to approach the court for quantification of the same.

                                              JUDGMENT NO.LC/MC/15/2013




L .Kudya


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President - Labour Court

Makoni Legal Practice – Appellant’s Legal Practitioners

Matsikidze   and   Mucheche     Legal   Practitioners     –Respondent’s   Legal

Practitioners.




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