The need for employees to submit to their employers'
authority is firmly grounded in common law.
Section 4 of the National Employment Code of Conduct,
S.I.15 of 2006 merely codifies common law. Thus, both at common law and statute, an employer/employee relationship
can only subsist in an environment where the employee is ready and willing to
submit to the employer's lawful authority.
Subordination to the employer's lawful orders is a
fundamental ingredient of the contract of employment without which it cannot
exist. This emerges quite clearly from the definition of labour law where Dr L
MADHUKU, Labour Law in Zimbabwe…, says:
“Labour law is concerned with labour work which is done in
a position of subordination, that is, when an employee works under the command,
the control and the authority of an employer, when the work is not carried out
in a position of subordination, as in the case of self-employment, labour law
does not apply.”
That definition is consistent with what has come to be
known as the 'supervision and control test'
formulated in the Blismas v Dardagan 1950 SR 234 case as follows:
“It is the essence of a contract of master and servant that
the servant should submit to the direction of the employer and obeys his
employer's instructions not only in the things he has to do but as to the time
and manner in which he has to do them.”
I might as well add, “…, and place where he has to do his
employer's work.”
M GWISAI in his book, Labour and Employment Law in Zimbabwe…,
refers to the supervision and control test as the 'hallmark' of the employment
relationship. This is a fundamental indispensable ingredient of the employment
contract.
In light of the law, and the respondents open defiance of
their employer's lawful orders, there is no dispute that they were correctly
found guilty as charged by the disciplinary committee. The only bone of
contention is the severity of the punishment. In other words, the simple issue
for determination is whether or not, after balancing the aggravating and
mitigating factors in the circumstances of this case the disciplinary committee
acted reasonably in upholding the employer's decision to penalise the
respondents with dismissal.
Section 4 of the National Employment Code of Conduct,
S.I.15 of 2006 classifies both offences as serious and warranting dismissal.
Where, however, an employee commits a dismissible act of misconduct dismissal
is not mandatory but discretionary on the part of the employer in terms of section
7(3) of the National Employment Code of Conduct, S.I.15 of 2006 which provides
thus:
“The dismissal penalty to be imposed for an offence in
section 4 is not obligatory but is meant as a guide to employers and an employer may, at his or her discretion,
apply a lesser penalty for example,
a written warning.”..,.
It is important to note, right from the outset, that where
an employee commits a dismissible act of misconduct under section 4 of the
National Employment Code of Conduct, S.I.15 of 2006 the law vests the
discretion whether or not to dismiss the offending employee on the employer
alone and no one else.
The test for wilful disobedience to a lawful order
warranting dismissal was laid down in the familiar case of Matereke v CT
Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206…, where GUBBAY JA…, had
this to say:
“…, wilful disobedience or wilful misconduct, the words, in
my view, connote 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 the employee, going to the very root of
the contract of employment.”
In this case, the respondents received at least three (3)
months written notice of the order to transfer. They challenged the lawful
order, through their lawyers, on moral and compassionate grounds without
success. After their pleas for a reprieve from transfer had been turned down,
they all knew, as a matter of fact, that their employer required them to be at
their new work stations, at all costs, by 1 January 2013. Upon consideration of
the respondents' representations, the appellant bent over backwards and
extended the date of compliance to 1 April 2013. Despite that indulgence, the
respondents, with full knowledge, defied the order.
The disobedience was wilful and deliberate, therefore going
to the root of their respective contracts of employment.
The transfers were being done in accordance with their
respective contracts of employment to enhance the employer's operational
efficiency. As Chief Designated Agents, they were managerial employees
profoundly aware of the employer's transfer policies and requirements. The
requirement to submit to regular periodic transfers was therefore a material
term of their respective contracts of employment. As such, their refusal to
obey the employer's order in this respect could only amount to wilful refusal
to do the work they were employed to do.
In this regard, the disobedience constituted a serious
negation of their respective contracts of employment.
Such conduct undermined and paralysed the employer's work
thereby constituting a fundamental breach of their respective contracts of
employment. By refusing to go where the employer's work was to be performed the
respondents were virtually rendering themselves incapable of performing their
employer's work thereby repudiating their respective contracts of employment.
The disobedience was not in error nor on the spur of the moment, but carefully
considered and relentless over a long period of time.
Under the circumstances, can it seriously be contended that
the employer's decision to dismiss was unreasonable considering that the
respondents had persistently refused to go where the employer's work was to be
done?
Ordinarily, for an employer's election to dismiss to be
vitiated for irrationality, the unreasonableness has to be gross or so
outrageous in its defiance of logic that no reasonable employer properly
applying his mind would have made such a decision.
I now turn to consider the reasonableness or otherwise of
the penalty of dismissal in the circumstances of this case.
In justifying that penalty, the Chairman of the Disciplinary
Committee had this to say at p 323 of the record of proceedings:
“PENALTY
….,. It was the unanimous view of the disciplinary
authority that the wilful disobedience of the respondent was in a very serious
degree and was seriously aggravated. The mitigation was not of sufficient
weight to operate to an extent as to excuse the penalty of dismissal. There was
no offer by the respondent to do the correct thing nor was there any expression
of regret by the respondent.”
With respect, I am unable to find any fault with the above
line of reasoning which is logical and consistent with all the facts which are
common cause. Although the above remarks were specific to the fourth
respondent, they apply equally to all the four respondents.
In reversing the disciplinary committee's penalty of
dismissal, the arbitrator reasoned, at p 448 of the record of proceedings, as
follows:
“A careful analysis of the record of proceedings reveals
that the disciplinary committee made justifiable findings in substantiating
breach of the said sections of the National Code.
However, I differ with them in the penalty they gave for
such contravention given the mitigatory factors and the circumstances of the
case. I am of the view that the claimants' mitigatory factors were very
pertinent to persuade the adjudicating authority to mete (out) a less punitive
penalty than dismissal and further compel them to obey the lawful order.”…,.
The court a quo, in a brief cryptic judgment, considered
and approved the above line of reasoning saying:
“The arbitrator's preceding analysis shows that she was
alive to her powers as well (as) the relevant factors to consider. My own assessment is that the mitigation outweighed the aggravation.
The offence is, by definition, a serious offence. However, the manner in which
it manifests is what needs to be examined…,.”…,.
What emerges quite clearly from the above line of reasoning
is that both the arbitrator and the court a quo were arrogating to themselves a
discretion which they did not have thereby usurping the discretion of the
employer under section 4 of the National Employment Code of Conduct, S.I.15 of
2006.
As I have already stated, once an employer has established
that an employee committed a dismissible act of misconduct, as happened in this
case, the discretion whether or not to dismiss lies solely with the employer.
Generally speaking, it is not for the appellate court,
arbitrator or tribunal to substitute its own discretion for that of the
employer. The point was brought home by MALABA DCJ in Innscor Africa (Pvt) Ltd
v Letron Chimoto SC64/2012…, where the learned DEPUTY CHIEF JUSTICE observed
thus:
“A principle has now been firmly established to the effect
(that) an appellate court should not interfere with an exercise of discretion
by a lower court or tribunal unless there has been a clear misdirection on the
part of the lower court. In this case, the Labour Court did not even appreciate
that it was dealing with a case of discretion by the arbitrator.”
Having regard to the circumstances of this case, and the
totality of the undisputed evidence placed before the disciplinary committee,
it can hardly be said that it acted unreasonably. Both the arbitrator and the
Labour court fell into error by applying the wrong test. The correct test, on
appeal, was whether the disciplinary committee, on the facts before it, had
acted unreasonably in ordering dismissal and not whether the mitigating factors
outweighed the aggravating factors as postulated by the arbitrator and
sustained by the court a quo.
In Matereke v CT Bowring & Associates (Pvt) Ltd 1987
(1) ZLR 206 it was held that the
existence of a moral excuse would not assist an employee guilty of a serious
act of misconduct going to the root of his contract of employment if the
employer was intent on dismissal as happened in this case.
Both the arbitrator and the court a quo therefore fell into
error and misdirected themselves by fastening onto, and reversing, the penalty
of dismissal on moral and compassionate grounds.
Whether or not the mitigating factors outweighed
aggravating circumstances was therefore an irrelevant consideration, unless the
manner in which that decision was arrived at was shown to be unreasonable.
Once the employer had proven that the respondents had
committed a serious dismissible act of misconduct, and in the absence of any error,
gross unreasonableness or misdirection, their fate lay firmly in the hands of
the employer in terms of section 7(3) of the National Employment Code of Conduct,
S.I.15 of 2006.
The discretion whether or not to extend mercy lay with the
appellant in its capacity as the employer.
It is apparent that both the Labour Court and the
arbitrator were labouring under a serious misapprehension of the law in
assuming that they could substitute their own discretion for that of the
employer in the absence of any error or misdirection on the part of the
disciplinary committee. In Mashonaland Turf Club v Mutangadura SC05-12, ZIYAMBI
JA was at pains to remind Labour Court Judges and arbitrators that it was not
open to them to alter a penalty of dismissal in the absence of misdirection or
unreasonableness on the part of the employer.
That caution appears to have found no takers as it
continues to be disregarded. What is especially alarming and of serious concern
is the belief by some authorities that they can replace the employer's
discretion to dismiss with their own to reinstate and then compel the employees
to obey the employer's orders.
Given the respondents' transgressions, amounting to a
fundamental breach of their respective contracts of employment, the decision to
dismiss the respondents from employment was eminently reasonable.
For the foregoing reasons, this Court came to the unanimous
conclusion that both the arbitrator and the court a quo, being creatures of
statute without inherent jurisdiction, fell into error and misdirected
themselves by exercising a non-existent discretion. In the result, the appeal
can only succeed.
It is accordingly ordered that:
1. The appeal be and is hereby allowed with costs.
2. The judgment of the court a quo be and is hereby set
aside and in its place is substituted the following:-
“(a) The appeal be and is hereby allowed.
(b) The arbitrator's decision be and is hereby
set aside.”
