Pauline Chikamba v Ellen Nyamanhindi N.O. and Civil Aviation Authority of Zimbabwe

### Preamble
IN THE LABOUR COURT OF
JUDGMENT NO. LC/H/159/25
ZIMBABWE HELD AT HARARE 19
CASE NO. LC/H/45/25
MARCH 2025 AND 16 APRIL 2025
IN THE MATTER BETWEEN:
PAULINE CHIKAMBA
APPELLANT
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IN THE LABOUR COURT OF
ZIMBABWE HELD AT HARARE 19
MARCH 2025 AND 16 APRIL 2025

IN THE MATTER BETWEEN:

PAULINE CHIKAMBA
AND
ELLEN NYAMANHINDI N.O.
CIVIL AVIATION AUTHORITY OF ZIMBABWE

Before Honourable Mr. Justice L.M. Murasi

For Appellant
For Second Respondent
No appearance for First Respondent

MURASI J.,

This is an appeal against the decision of First Respondent.

The brief facts are that Appellant was employed by the Second Respondent in the ICT Department. The allegations are that Appellant was tasked to work with the LIT team in a bid to improve Second Respondent’s system. It is further averred that Appellant did not do as instructed and turned away the LIT team when it came to do business. It is further alleged that Appellant was instructed to complete the tasks assigned to her in May 2023 and failed or neglected to do them as instructed. Attempts to hold disciplinary hearings were not successful and the matter was later referred to the Designated Agent who subsequently found the Appellant guilty and recommended her dismissal from employment. Appellant is dissatisfied with this outcome and has approached this Court for relief.

Appellant’s grounds of appeal are as follows:


1. The $1^{st}$ Respondent grossly erred on a question of law by making a clear contradiction with the law through on the one hand accepting that the instruction in question lacks a source of command and yet upholding the charge tat there was willful disobedience of a lawful order which lacked a proper source of command.

2. The $1^{st}$ Respondent grossly erred on a question of law by making a guilty finding on the charge of willful disobedience of a lawful order, based on assumptions without any tangible evidence to back her conclusion that an initial instruction was given to the appellant before the $24^{th}$ of April 2024.

3. The $1^{st}$ Respondent grossly erred on a question of law by concluding that there was willful disobedience of a lawful order based on a wrongful conclusion that the appellant stated that she had no time to entertain the LIT team.

4. The $1^{st}$ Respondent grossly erred on a question of law by disregarding evidence presented by the appellant disputing that she performed the duties assigned regarding completing the network assessment, concluding that the appellant did not dispute the allegation in question.

5. The $1^{st}$ Respondent grossly erred on a question of law by concluding that the appellant willfully disobeyed a lawful order by walking out of a meeting, yet she acknowledges that the appellant attended the meeting upon instruction and also admits that the appellant communicated before she left the meeting and was allowed to leave.

6. The $1^{st}$ Respondent grossly erred on a question of law by making a clear contradiction with herself by admitting that the QMS audit provision was not part of the appellant’s job description and at the same time expecting the appellant to provide the information in question.

7. The $1^{st}$ Respondent grossly erred on a question of law by concluding that the appellant failed to restore neatness of the network cables when the picture produced was that of work in progress. The $1^{st}$ Respondent disregarded the evidence that the cables were ultimately restored.

At the commencement of the proceedings, *Mr. Hwacha* informed the Court that Second Respondent was abandoning the preliminary point that had been raised to the effect that the Court had no jurisdiction to entertain the matter.

During the course of the proceedings, *Ms. Makura* stated that she was abandoning the third and fourth grounds of appeal. She also indicated that the second ground of appeal was similar to the first ground of appeal. This in effect means that there are four grounds of appeal left to be dealt with.

**Submissions by the Parties**

**Appellant’s Submissions**

*Ms. Makura* stated that she was abiding by the documents filed of record. She submitted that there was no unlawful disobedience as there was no evidence that displays this willful disobedience.


She further submitted that such disobedience as alleged must be deliberate and serious. She further stated that Appellant had turned away the LIT team as there was no instruction to receive them and deal with the team. She added that the email from Taona Chirimuta dated 25 April 2023 was a report and could therefore not been taken to be part of instructions to Appellant. Ms. Makura further argued that the Designated Agent had initially found that there was no lawful instruction given to the Appellant but later changed that position which was not correct in the circumstances. She added that there was no instruction from the Immediate Superior to her to engage the LIT team on 25 April 2023.

In respect of the fifth ground of appeal, it was argued that Appellant had left the meeting on two separate occasions and had returned after informing her superior that she had to attend to business outside the meeting. Ms. Makura further stated that Appellant had left the meeting on a third occasion but found the meeting had adjourned. She argued that this did not amount to willful disobedience.

In the sixth ground of appeal, it was submitted that the Designated Agent fell into error by accepting that it was part of the Appellant’s duties to supply information to the QMS audit as this was not contained in the contract of employment.

As far as the seventh ground of appeal was concerned, Ms. Makura submitted that the cables were eventually restored without identifying the person who performed the task. She added that the picture which was produced during the hearing could not lead to the conclusion that it was poor performance of duty as the Appellant had fallen ill before the task was completed.

**Second Respondent’s Submissions**

In response, Mr. Hwacha stated that he had a preliminary objection to the way the grounds of appeal were couched. He submitted that the Appellant had couched the grounds of appeal as if they raised points of law when in fact no point of law was identified. Mr. Hwacha further submitted that Appellant was expressing a general disgruntlement with findings of fact. He stated that in such circumstances there should be an allegation of a gross misdirection on factual issues and this had not been done.

On the merits, Mr. Hwacha submitted that the First Respondent had made correct findings on the facts. He stated that the emails that were referred to in the engagements with LIT were part of an ongoing process and a chronology of the tasks that had been assigned to the Appellant. He added that these emails are associated with that instruction. He further stated that after having engaged the LIT team on 24 April, the Appellant had dismissed the team the following day. Mr. Hwacha argued that Appellant was part of the team assigned to this task and could not turn around and state that she did not know why they had come. He further submitted that the instruction had come from her immediate superior and she could not turn around and pretend that she did not have any instruction on the matter.


As far as the fifth ground of appeal was concerned, *Mr. Hwacha* referred to the **Matereke Case** and averred that there was reasonableness in the instruction issued by the Second Respondent to the Appellant. He argued that when Appellant disappeared from the meeting for the third time, she had not informed her boss and this action should be regarded as willful.

In respect of the sixth ground of appeal, *Mr. Hwacha* submitted that an employee must obey instructions that are incidental to the employee’s work. He further stated that it was incidental for the Appellant to provide the information to the auditors and that the Designated Agent had made a finding that it was within the Appellant’s job description to have supplied that information to the audit team. He referred to the **Stella Nhari Case** in the Second Respondent’s heads of argument.

*Mr. Hwacha* further submitted that the Designated Agent made a finding about Appellant’s explanation as to the state of the cables after Appellant had completed the day’s work. He added that the explanation tendered by the Appellant was not correct as she was supposed to have dealt with the cables soon after the completion of the task. *Mr. Hwacha* further submitted that there was a general insubordination attitude which pervaded Appellant’s relationship with her immediate superior as evidenced by the tone of the responses and quality of her engagements with the immediate superior.

**ANALYSIS**

In **Sable Chemical Industries Limited v David Peter Easterbrook** 2010 (2) ZLR 342 (S), GARWE JA (as he then was) had this to say:

“In order to get around this provision, some legal practitioners couch their grounds of appeal so that, on the face of it, they appear to raise issues of law when in fact they do not…The words ‘on a question of law’ have been added simply to give the impression that what is being raised is a question of law and yet the real issue raised in that ground of appeal is whether or not the committee was properly constituted, clearly an issue of fact.”

As observed by *Mr. Hwacha*, Appellant’s grounds of appeal are a disgruntlement with the Designated Agent’s factual findings. Appellant was enjoined to aver a gross misdirection on the part of the Designated Agent. It is the settled position of the law that a serious misdirection on the facts amounts to a misdirection in law as the giving of reasons that are bad in law constitutes a failure to hear and determine according to law. For an appellant to avail himself/herself of a misdirection as to the evidence, the nature and circumstances of the case must be such that it is reasonably probable that the tribunal would not have determined as it did had there been no misdirection; in other words, that the determination was irrational.

I make the observation that the Appellant’s grounds of appeal purport to raise the issues that the Designated Agenet erred on a point of law without showing which point of law arises from the determination. The grounds of appeal actually refer to the factual findings of the Designated Agent as being wrong or incorrect. No irrationality is averred in those grounds of appeal.


However, for the sake of completeness, I will proceed to deal with the issues raised in the grounds of appeal.

The first ground of appeal raises the issue of the absence of an instruction to the Appellant to deal with the LIT team. The record shows that there was a meeting convened by the Second Respondent’s Director-General with LIT representatives. The issues that were discussed pertained to the IT problems that the Second Respondent was facing. LIT was roped in to assist. Appellant’s immediate supervisor was the lead person for the tasks that were to be carried out. Appellant was part of that team. With this background, what were the findings of the Designated Agent in this respect? They were as follows:

“It is my finding that the email dated 24 April 2023 from Taona Chirimuta was not the initial instruction to the Respondent to host the LIT team on behalf of the Complainant. Rather the email was giving feedback on what was noted by the LIT team on their site visit on the 24th of April. In that email, Taona Chirimuta mentioned that tests conducted while connected to the client’s switch show an average of about 5Mbps (as per screenshots on @chikamba, Pauline’s laptop). This shows that Respondent was working with this team on the 24th of April. The fact that Respondent was working with the LIT team on the 24th of April proves that there was an initial instruction that was given to the Respondent prior to the 24th of April. The email from Taona was not the initial instruction on the task as implied by Respondent. It was a feedback on the work that had already been done on the 24th of April with Respondent’s involvement.”

I have elsewhere referred to the meeting convened by Second Respondent’s Director-General with LIT representatives. The LIT team was contracted to deal with Second Respondent’s IT problems. Appellant does not deny that she dealt with the LIT team on 24 April. Logically, she could not have dealt with that team without being instructed to do so. There must therefore have been a standing instruction from her superiors. Can the above findings made by the Designated Agent be termed irrational in the circumstances? I think not.

The Designated Agent made a further finding that she instructed the Appellant on 16 May 2023 to complete the network assessment and she did not. The immediate superior had to re-engage the LIT herself four months later in September 2023. The Designated Agent made the crucial finding that this allegation was not disputed by the Appellant. The following is the finding:

“This allegation was not disputed by Respondent in her submissions and as such, I find that Respondent willfully disobeyed a lawful instruction by failing to complete the network assessment following a lawful instruction to do so.”

In **InnsCor Africa (Private) Limited v Terrence Gwatidzo** SC 5/15, PATEL JA (as he then was) had this to say at page 5 of the cyclostyled judgment:


“In essence, willful disobedience and insubordination, although treated separately in case authority, are two sides of the same coin. In other words, an employee will be guilty of insubordination where he or she willfully disobeys a lawful order.

In **Matereke’s case** (supra) at 211G-212A, it was held per GUBBAY JA that willful disobedience 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.’”

Having regard to Appellant’s omissions and commissions in this matter, it cannot be said her actions were the result of ‘unconsidered reaction in a moment of excitement’ or a result of some mistake or inadvertence. Appellant had engaged the LIT team on 24 April but went on to dismiss them the following day. She was given an instruction to complete the task in May 2023 and did nothing until her immediate superior took upon it herself to do the tasks some four months later. AS observed by the Designated Agent, this was not denied by the Appellant. I do not find any misdirection on the part of the First Respondent on this score.

The remaining issues should not detain the Court. Appellant was requested to provide information to the audit team and she declined to do so. The supply of this information was work-related. There was no reason for declining to provide the information concerned.

This brings me to the issue of leaving the cabling in disarray. The pictures submitted by the Second Respondent depict a sore sight. The record shows that Appellant’s superior stated that this caused interruptions in some departments and she had to take corrective measures. Appellant’s submissions in this regard were rejected by the Designated Agent and I do not find fault with those findings.

The last matter involves Appellant’s attendance at a meeting. The facts are somewhat convoluted. Both parties are agreed that Appellant left the meeting twice and informed her superior when she did so. The charge arises from the fact that she left the meeting a third time without informing her superior and did not come back. The explanation given by the Appellant is that she indeed went out a third time but when she returned, the meeting had adjourned. There is no serious rebuttal from the Second Respondent on this aspect. I am of the view that the Designated Agent did not correctly apply her mind to the facts in this particular instance. This ground of appeal ought to be allowed.

However, the upholding of this ground of appeal amounts to an empty victory as the other grounds of appeal lack merit and ought to be dismissed.


I note that Appellant has not appealed against the penalty imposed upon her and I will therefore refrain from dealing with it.

The Court makes the following Order:

1. The third and fourth grounds of appeal are withdrawn at Appellant’s instance.
2. The appeal is the fifth ground of appeal succeeds.
3. The appeal is grounds of appeal 1,2,6 and 7 is hereby dismissed.
4. The decision of the Designated Agent to dismiss the Appellant is hereby upheld.
5. Each party to meet its own costs.

Caleb Mucheche and Partners-
Appellant’s legal practitioners
Dube, Manikai & Hwacha-
Second Respondent’s legal practitioners
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