The pertinent facts of the matter are as follows.
The respondent was employed as a pastry maker in the
appellant's Pie Division. On 9 October 2005, the appellant requested its
employees to report for emergency overtime duties. Except for the respondent,
who was on authorised time off, all of the other employees reported for duty.
Upon the respondent's return to work, his supervisor asked him to write a
report stating why he had not reported for emergency duties. The respondent
refused to do so, arguing that his time off had been properly sanctioned, and,
therefore, there was no need for him to write a report on his time off.
The respondent was later charged with two acts of
misconduct, i.e. refusal to work
overtime in case of emergency and wilful disobedience of a lawful order given
by his superior. The appellant's Disciplinary Committee acquitted the
respondent on the first charge but found him guilty on the second charge. It
then ordered his dismissal with effect from 26 October 2005 and its decision
was subsequently upheld by the appellant's Appeals Committee.
On appeal by the respondent against his dismissal, the
Labour Court found that, because it was known that the respondent was on
authorized time off, the order to write a report was so unreasonable as to be
unlawful. Therefore, the respondent's refusal to comply with that order was not
an act of insubordination. The court allowed the appeal and ordered the
appellant to reinstate the respondent or pay damages in lieu of reinstatement.
The grounds of appeal herein are essentially twofold:
(i) That the court a quo applied the wrong test in holding
that the order given to the respondent was so unreasonable as to be unlawful;
(ii) That the court consequently erred in finding that the
respondent's refusal to write the report did not constitute wilful disobedience
of a lawful order given by his superior….,.
LAWFULNESS
AND REASONABLENESS OF ORDER
In principle, every employee has a duty to obey any lawful
order given by his or her employer. See Matereke v CT Bowring & Associates
(Pvt) Ltd 1987 (1) ZLR 206 (S)…, where the meaning of what constitutes a lawful
order is explained by GUBBAY JA as follows:
“The second requirement, that the disobedience be directed
at 'a lawful order', means simply that the employee is not bound to obey an
order to do something not properly appertaining to the character or capacity of
his contract of employment. An order which involves a reasonable apprehension
of immediate danger to the employee's life or injury to his person, not
reasonably contemplated at the time he entered the employment, is unlawful and
he is justified in refusing to obey it. For instance, an order to remain in a
place in which his personal safety is endangered by violence or disease. See
Bouzourou v The Ottoman Bank [1930] AC 271 (PC) at 276. The position would be
otherwise were the employee a fireman, a policeman or a member of the armed forces.
See Scoble op cit at p 147; Chitty on Contracts 25 ed vol 2 para 3510.
The existence of a moral excuse for such disobedience will
not make the disobedience any less wilful or the order any less lawful. This
proposition is well illustrated by the old English case of Turner v Mason
(1845) 14 M & W 112; 153 ER 411, in which a domestic servant - quite
deliberately because she had made a request which was rejected - absented
herself during a night when she should have been on duty. Her plea of justification
was that her mother was desperately ill, though it is not clear that she so
informed her employer. She was summarily dismissed and the Court of Exchequer
upheld the dismissal. PARKE B remarked that even if the employer had been made
aware of the cause of her request to absent herself, it would not have been
sufficient to justify her disobedience to his order….,.
…,. The order to vacate the office did not involve a
contravention of any law or any improper conduct on the part of Bowring. It did
not expose the appellant to any risk or danger. In fact, it only required him
to return to his own office. That order was not so unreasonable as to be
unlawful.”
As for the element of reasonableness, KORSAH JA made the
following remarks in PTC v Chihoro 1997 (1) ZLR 148 (S)…,:
“What is a reasonable order must necessarily rest on the
circumstances of each case. There is no requirement that a lawful order must,
in addition, be reasonable. If an order be so unreasonable as to defy common
sense then it cannot be a lawful order. For instance, if the respondent herein
had been ordered to go and deliver the telegrams immediately after suffering an
epileptic seizure the order would have been so unreasonable that it could not
be categorised as lawful, and disobedience to it would not justify summary
dismissal. Similarly, if the respondent had been requested to deliver the
telegrams at a place where a riot was in progress it may well be that his
refusal to comply with the order would not justify his summary dismissal.
It is not an offence to refuse to obey an unreasonable
order, for such an order is not a lawful order: R v Qumba 1930 CPD 396. And in
the Indian case of Punjabhai v Bhagwandas (1928) ILR 53 Bom 309 (C) (cited in
Words and Phrases Judicially Defined) MIRZA J expressed the view that -
'Lawful is what is in conformity with (or frequently not
opposed to) the principle or spirit of the law whether moral or judicial.'
An order so unreasonable as to oppose the principle or
spirit of the law cannot be lawful. What I said in the National Foods case
supra should be read in this light. Implicit in lawful is what is not
unreasonable.”
What I glean from these remarks is that although there is
no positive requirement for an order to be reasonable, an order that is shown
to be unreasonable is unlawful and need not be obeyed. I would add that it
would be necessary to show that the order is unreasonable in the given
circumstances of the case. To put it differently, an order or instruction is
unlawful where it is so unreasonable that no reasonable person in the position
of the employer would possibly issue it with the expectation that any employee
would comply with it.
In summation, the test for evaluating the lawfulness of an
order, as derived from the cases, is whether the order:
(i) Is capable of being carried out by the employee;
(ii) Is for the advancement of the employer's business;
(iii) Is closely related to the duties of the employee;
(iv) Constitutes an instruction to the employee to perform
a lawful act; and
(v) Is not unreasonable in the circumstances of the case.
WILFUL
DISOBEDIENCE AND INSUBORDINATION
In essence, wilful 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
wilfully disobeys a lawful order.
In Matereke v CT Bowring & Associates (Pvt) Ltd 1987
(1) ZLR 206 (S)…, it was held, per GUBBAY JA, that wilful 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.”
Similarly, as was observed by KORSAH JA in Chironda v Swift
Transport 1996 (1) ZLR 142 (S)…,.:
“Surely, the omission to comply with a lawful order is not
necessarily borne out of a defiance of authority. Unless the proved facts lead
irresistibly to an intention to hold authority at defiance, it is a serious
misdirection to hold that the appellant's omission to comply with an order was
wilful.”
According to GROGAN: Dismissal, Discrimination and Unfair
Labour Practices (2nd ed.)…, insubordination arises when an employee
refuses to accept the authority of his employer or superior. The employee must,
by his act of insubordination, challenge the authority of his employer and
thereby undermine their contractual relationship. There must be a calculated
breach by the employee of his duty to obey his employer. In short, he must
intend to defy the employer's order or instruction.
DISPOSITION
In the present case, there can be no doubt that the order
given to the respondent, to write the report, was capable of being carried out
by him. Additionally, although there is no reporting requirement spelt out in the
appellant's Code of Conduct, I see no reason to disagree with the appellant's
position that it was procedurally necessary for each one of its employees to
account for his or her absence, in writing, so as to maintain discipline at the
workplace. In that sense, the order was not only in the interests of and for
the advancement of the appellant's business but also closely related to the
duties of the respondent. Lastly, it cannot be gainsaid that the instruction
given to the respondent was one to perform a lawful act.
The order given to the respondent was to put in writing the
reason for his non-attendance for overtime duty. He was not asked to explain
where he was or what he was doing during his time off. He was simply asked to
formalise his non-attendance at work. In the circumstances, I do not think that
the order can be regarded as being an invasion of his privacy or so
unreasonable as to be unlawful.
The respondent refused to write the report as instructed
because he was of the firm view that the appellant had no right to ask him to
write the report, particularly as the appellant was aware that he was on
authorized time off. He felt that the instruction given by his superior was an
invasion of his privacy.
Therefore, he deliberately and consciously disobeyed the
instruction.
As was made clear in Matereke v CT Bowring & Associates
(Pvt) Ltd 1987 (1) ZLR 206 (S)…, the existence of a moral excuse for
disobedience does not make the employee's disobedience any less wilful or the
employer's order any less lawful. Thus, the fact that the respondent vehemently
believed that he was justified in refusing to obey the order does not diminish
the wilfulness of his disobedience or affect the lawfulness of the order. Nor
does it matter that the appellant was aware of the cause of the respondent's
absence from work. That awareness did not relieve the respondent from his duty
to obey the lawful instruction given to him.
The instruction was issued by the respondent's immediate
supervisor who held a position of authority over the respondent. Consequently,
the respondent had a duty to obey the instruction irrespective of the belief,
which he openly proclaimed, that there was no need for him to submit the
report. His refusal and failure to obey the order constituted an attack on the
authority of his employer and undermined their contractual relationship.
Moreover, he compounded his defiance of authority at the disciplinary hearing,
by refusing to answer the questions put to him or to explain his earlier
defiance. It is abundantly clear on the facts that he intended to defy his
superior and ultimately his employer. In the event, there can be no doubt that
he was guilty of wilful disobedience and insubordination.
The Labour Court found that the order given to the
respondent to write the report was unreasonable and therefore unlawful. It
accordingly found that he was not obligated to comply with the order and that
his refusal to do so did not amount to insubordination. Having regard to the
position that I have taken, the court a quo clearly misdirected itself and
erred in its findings. In the result, the appeal against its decision must be
upheld, with costs inevitably following the cause.
It is accordingly ordered that:
1. The appeal be and is hereby allowed with costs.
2. The decision of the court a quo is set aside and
substituted as follows:
“The appeal be and is hereby dismissed with
costs.” 