Brighton Chikwanha N O v Gibbs Gibson Jumbi and Hwange Coal Gasification Company (Pvt) Ltd

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/786/2016
HARARE, 1 DECEMBER 2016 &
CASE NO LC/H/LRA/143A/2016
16 DECEMBER 2016
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IN THE LABOUR COURT OF ZIMBABWE	JUDGMENT NO LC/H/786/2016

HARARE, 1 DECEMBER 2016 &			CASE NO LC/H/LRA/143A/2016

16 DECEMBER 2016

In the matter between

BRIGHTON CHIKWANHA N O					APPLICANT

Versus

GIBBS GIBSON JUMBI						1ST RESPONDENT

and

HWANGE COAL GASIFICATION COMPANY

(PVT) LTD								2ND RESPONDENT

Before the Honourable Murasi J

For the Applicant				In person

For the 1st Respondent			Mr. G. Sithole

No Appearance for the 2nd Respondent

MURASI J:

This is an application for confirmation of a Draft Ruling in terms of section 93 (5a) of the Labour Act, [Chapter 28:01], as amended.

The brief facts of the matter are that 1st respondent was employed by the second respondent in 2010 having moved from the Airforce of Zimbabwe to take up that position. The terms and conditions of his employment are not particularly clear save to state that the first respondent (hereinafter referred to as the employee) wrote to the second respondent (hereinafter referred to as the employer) requesting for a written contract specifying his condition of employment. The employee continued to work without such contract.

At a later stage, that is in March 2012, the employer gave to the employee a draft contract of employment which the employee queried as it did not include some benefits which the employee claimed had been agreed upon with the Managing Director. This the employee put into writing. There was no response from the employee. In October 2013 the employer presented another draft employment contract to the employee with instructions that the employee was to sign the contract on the same date that it was presented. The employee requested for time to consult his legal practitioners. This was not granted and the employee was immediately suspended on allegations of wilful disobedience to a lawful order. The employee was brought before a disciplinary committee which found him and recommended his dismissal. The matter ended up with the applicant who made the ruling that the employer was correct in taking the decision that it did. The applicant seeks confirmation of that ruling.

Mr Sithole, for the employee submitted that the ruling by the applicant was erroneous and the applicant should have found that the order given by the employer was unlawful and that the employee was under no obligation to obey it as the employer had wanted to force the employee to sign a contract which had not been negotiated by the parties. Mr Sithole further submitted that in law a contract is a negotiated instrument and therefore the employer could not simply thrust a document and force the employee to sign when the employee was not agreeable to it. It was further argued that since the employee had been employed since 2010, he was presumed in terms of the law to be a permanent employee yet the draft contract of employment was a fixed term of contract. It was further stated that the employer sought to unilaterally vary the terms of the contract which existing between the two parties. Mr Sithole further stated that the applicant, and by extension the disciplinary committee, grossly misdirected themselves in concluding that the employee was in wilful disobedience.

Was the applicant correct in determining that there was a wilful disobedience to a lawful order? The facts show that the employee commenced employment with the employer in 2010. There was no written contract. The employee requested for a written contract. In 2012, a draft contract was given to the employee who queried the absence of certain benefits which he believed he was entitled to. The employer did not respond. Meanwhile, what was the employee’s status at the company? As conceded by the Applicant, the employee had assumed the status of an employee who had a contract without limit of time. What this clearly means is that the draft contract given to the employee in October 2013, which was a fixed term contract, was a clear variation of the terms of contract. As the facts show, this was also a unilateral variation. Was this a lawful order? The facts militate against making such a finding.

Mr Sithole quoted the case of Matereke v C T Bowring and Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC). That case enunciated what is considered disobedience to a lawful order. It stated that this must be deliberate and the disobedience must be intentional. The cardinal pre-requisite, obviously, is that there must be a lawful order. Was is it a lawful order to force an employee to sign a contract of employment? It is known that for such a contract to exist there must be a meeting of the minds and the parties must do this without their being unduly influenced thereto. This therefore means that the employer’s order was not a lawful one. The applicant conceded during the hearing that he indeed had made an error in this regard.

It is my view that there is no need to address the other issues raised by Mr Sithole in this regard.

In the result the Court makes the following order:

1. 	The application for confirmation of the Draft Ruling be and hereby dismissed.

2. 	The Draft Ruling of Brighton Chikwanha N.O. dated 24 May 2016 be and hereby set aside.

3. 	There be no order as to costs.

Mawire JT & Associates,1st respondent’s legal practitioners