Tendai Nyazema Mupokosa v Zimbabwe Parks & Wildlife Management Authority

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/209/16
HARARE, 15 FEBRUARY 2016
CASE NO. LC/H/248/15
JUDGMENT NO. LC/H/209/206
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IN THE LABOUR COURT OF ZIMBABWE	                 JUDGMENT NO. LC/H/209/16

HARARE, 15 FEBRUARY 2016			      CASE NO. LC/H/248/15

AND 8 APRIL 2016

In the matter between:-

TENDAI NYAZEMA MUPOKOSA					Appellant

And

ZIMBABWE PARKS & WILDLIFE MANAGEMENT			Respondent

AUTHORITY

Before The Honourable E. Muchawa, Judge

For Appellant	Mr S.D. Chivore (Legal Practitioner)

For Respondent	Miss Y Gumbo (Legal Officer)

MUCHAWA, J:

This is an appeal against the determination of the respondent’s appeals committee.

The appellant was employed by the respondent as a ranger with effect from 2005.  At the material time, he was based at Marongora Field Station.

It is alleged that on the 19th of November 2014 he refused to react to an emergency anti poaching patrol (an incursion) after being asked to do so by the senior Wildlife Officer, a Mr Chinhovo, who had received a tip off about poachers being in the Marongora area.  It is further alleged that upon being asked to write a report stating the reason for his failure to heed the instruction given, appellant refused to do so.

The appellant was then charged of five offences including disobedience to a lawful order.  He was found guilty of all five charges and dismissed.  On appeal, the appeals committee quashed four of the charges on the basis that there had been an unnecessary splitting of charges.  They however upheld the conviction on the charge of disobedience to a lawful order and the penalty of dismissal.

On appeal before me, this is the ground of appeal;

“1.	The Appeals Committee erred in founding (sic) the appellant guilty of disobedience despite the fact that independent assessment by another official was not done to determine whether the instruction was unsafe or otherwise as alleged by the applicant as require (sic) by paragraph 3.5.1 (ii) of the respondent’s code of conduct.  Convicting the appellant in the absence of such an assessment amounts to a serious misdirection at law.”

The appellant argues that the respondent did not comply with the provisions of its code and the subsequent disciplinary proceedings should be held to be void.  Appellant prays for the setting aside of the verdict and penalty of the disciplinary and appeals committee and an order of reinstatement without loss of salaries and benefits.

The respondent’s argument is that the appellant does not dispute that he was instructed and refused to react to an incursion and to write a report stating his reasons for refusal.  For this I was referred to page 22 of the record.

What is however evident from the minutes of the disciplinary hearing, is that the appellant admits to not obeying the order to react to an incursion due to the threat of tsetse.  He does not admit to the refusal to write a report.  On record page 25 when asked why he did not write a report regarding why he refused to go and react to an incursion as per area manager’s instruction, he responds

“I was not told.”

The respondent does not press this point further and moves to the next charge.

The findings of the disciplinary committee are that the appellant had disobeyed a lawful order when he refused to go and react to an incursion.  They made no finding relating to the refusal to write a report.

The respondent argued that the instruction given to the appellant was lawful and should have been obeyed.

It was averred that the appellant’s duties were to carry out anti poaching patrols as directed by his supervisor and as confirmed by the employment contract.

The fact that the appellant had been based at Marongora Field station for about ten years in this capacity and with heat and tsetse as a feature, is pointed out.  Further, the respondent explained that the appellant was provided with adequate appropriate clothing, a monthly discomfort allowance meant to cater for repellants of mosquito and tsetse and medical aid cover.

The fears that one ranger had died as a result of tsetse bites leading to trypanosomiasis is dismissed as unfounded.

In short, the respondent dismisses the allegation of a health hazard as baseless.  The conduct of the appellant is said to be willful disobedience of a lawful order which goes to the root of the contract of employment.

The question emerging for my determination is whether or not the order given to react to an incursion was a lawful order.

The appellant relies on section 3.5.1. (ii) of the respondent’s Code of Conduct and Grievance Procedures, to argue that the order was not lawful.  This section in listing disobedience and related acts of misconduct provides,

“Failure to obey lawful instruction given by a person in authority. NOTE:  Where an employee perceives the instruction to be unlawful or unsafe independent assessment of another official would be sought.”

It is contended that because an independent assessment was not sought, the instruction became unlawful.

Respondent argues that the order was essentially a lawful one as it was given by the employer, was for the advancement of the employer’s wildlife conservation and management business, it was capable of being  carried out by the employee and was closely related to his duties.

It is further argued that the existence of a grievance or any moral excuse did not justify the disobedience to the lawful order.  The case of Masiyiwa v T.M. Supermarkets SC 14/1990 held as follows,

“Even where an employee feels that he has some good reason for disobeying a lawful order, he must still obey the order.  He can thereafter raise his objections formally.  No matter how morally indignant one may be this does not justify the failure to obey a lawful order.”

I wish to apply the approach set out in the case of Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (SC) at 212 where it was held that,

“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 at the time he entered 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. … The position would be otherwise were the employee a fireman, a policeman or a member of the armed forces.”

See also Innscor Africa (Pvt) Ltd v Gwatidzo SC 5/2015

My considered opinion is that the note to section 3.5.1. (ii) should be interpreted to provide a procedure to be taken where there is a reasonable apprehension of immediate danger to life or injury to person.  It would, not apply where the danger is such as reasonably contemplated at the time of entering employment or one which is an ongoing hazard of the form of employment.  This is inherent in the definition of a lawful instruction.  Otherwise all employees would disobey lawful instructions with impunity and allege that there is need for an independent assessment.

Such an approach would defeat the operations of the respondent because responding to incursions needs an emergency approach.

The submissions of the respondent show that heat and tsetse have always been a feature of Marongora Field Station hence the discomfort allowance paid to the appellant.  The danger suddenly feared by the appellant has always been a feature since he entered employment.  It is an ongoing hazard and mitigatory measures were put in place with follow up meetings scheduled to deal with employee concerns.

This was therefore a fitting case for the appellant to have complied with the order first and sought redress later (which was pending anyway).

Accordingly, the appeal is dismissed for lack of merit.

Koto & Company, appellant legal practitioners