Varichem Limited v Carrington Mutoto

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/704/2014
HARARE, 04 SEPTEMBER 2014
CASE NO. LC/H/706/13
JUDGMENT NO. LC/H/704/2014
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/704/2014

HARARE, 04 SEPTEMBER 2014	    		  CASE NO. LC/H/706/13

AND 24 OCTOBER 2014

In the matter between:-

VARICHEM LIMITED						Appellant

And

CARRINGTON MUTOTO						Respondent

Before Honourable E Muchawa, Judge

For Appellant		S.A. Tawona (Legal Practitioner)

With Ms Makala (Legal Practitioner)

For Respondent		G. Pendei (Legal Advisor with the Respondent)

MUCHAWA, J:

This is an appeal against a decision of the appeals board of the Chemicals and Fertilizers Manufacturing Industry handed down on 26 August 2013.

Respondent is a former employee of the appellant.  He was employed as a machine operator in the production department until his dismissal on 29 May 2013 which was effective from 22 April 2013 being the date of suspension.

The charges against respondent were in terms of SI 31 of 2011 (the Eighth Schedule) being the relevant Industrial Code of Conduct.  He was charged of a refusal to perform a contractual duty and willful disobedience to a lawful order given by any person in authority.  His letter of suspension however indicated he was being suspended on allegations of insurbodination.

The facts giving rise to the charges were that respondent had refused to come and work overtime on Friday 19 April 2013 after 24 hours notice had been given to him.  In addition, respondent was alleged to have refused to come on night shift on 22 April 2013.

The disciplinary committee found respondent guilty of willful disobedience to a lawful order given by a person in authority and refusal to perform a contractual duty.  On appeal to the Managing Director, the decision of the tribunal a quo was upheld.  It was the NEC Appeals Committee which upheld respondent’s appeal hence the present appeal by the employer.

Six grounds of appeal are before me.  They raise the following issues;

Whether or not appellant had given respondent a lawful order and whether the giving of an order is distinguishable from performance of such an order by an employee.

Whether or not mitigation had been considered before passing sentence.

Whether the finding that the disciplinary proceedings were flout with irregularities is correct and effect of that.

Whether or not there is a nexus between insubordination and disobedience of a lawful order and propriety of charges preferred against respondent.

Whether or not the two charges of refusal to perform a contractual duty and that of disobedience to a lawful order given by a person in authority were treated separately in the hearing.

Whether it was procedurally correct for Mr. L. Chipanga to write the letter of dismissal.

The appeal is opposed.  I deal with each of the issues/grounds of appeal in turn.

Ground 1 – Lawful Order

The parties are agreed that the respondent’s contract of employment was silent on the issue of overtime or nightshift.  It specifically stated in paragraph 4 thereof,

“The company operates a five day week and hours of business are from 7.30 am to 5.00 pm.  A 30 minutes lunch break between 1.00 pm and 1.30 pm is included.”

It is appellant’s argument that section 8 of the eighth schedule of Statutory Instrument 31/2011 defines the offence of refusal to perform a contractual duty as

“Wilfully and intentionally declining to perform any of those duties which he is bound to perform which are part of or incidental to the job he is employed to do.”

And disobedience to orders is

“showing a clear intention that an employee will not carry out an order … whether written or oral … if brought to the notice of the employee by a person in authority must be obeyed unless it is unlawful”

Even though the contract of employment was silent on the issue of overtime or night-shift, respondent is said to have simply been asked to carry out the same duties in his contact, albeit at different times.  Such duties are said to have been incidental to his contract.

The handing in of the letter of suspension is argued not to have been premature even though that was done before the commencement of the night shift in question.  Respondent is said to have clearly declined to carry the instruction out due to his reservation on owed overtime.  He is said not to have heeded the instruction to go back home and come for the night shift.  Further he is said not to have done his day shift duties.

I was referred to Section 15 (2) (C) of Statutory Instrument 31 of 2011.  It provides as follows;

“any employee may at any time be called upon to work overtime after his ordinary hours of work have been completed.  If such overtime is a continuation of the ordinary hours of work, the employee shall be paid only for the actual time worked at overtime rates.”

The orders given for night shift and overtime are said to be lawful even though they were not contractually provided, due to the section 15 (2) (C) quoted above.

Respondent argues that he had no obligation to work for overtime or night shift which was not going to be paid or to work for the granting of equivalent time off.  I was referred to section 15 (2) (b) of the SI 31 of 2011 which sets the rate of pay for overtime work and that in lieu of that, the employer and employee, by mutual consent may be granted equivalent time off.  Reference was also made to the contract of employment which clearly sets the working times.  As respondent did not consent to be paid equivalent time off, this is said not to be a lawful instruction.

In respect to the refusal to work the night shift, respondent submits that he was not employed as a shift worker.  Section 7 of SI 31 of 2011 distinguishes between a day worker, a shift worker or a continuous shift worker and different conditions are laid down for each of these workers.  Respondent’s contract makes him a day worker and the request for him to work on the night shift is said to be an unlawful unilateral variation of the contract of employment.  It is argued therefore that this cannot be held to be a lawful order.

The suspension is said to have been premature as respondent was not given an opportunity to avail himself for night shift as he was suspended at 4 pm yet night shift would only start at 6 pm.

The question of the applicability of SI 31 of 2011 to appellant and respondent is unquestioned and set out in Section 1 (1) of that document.

I do find therefore that Section 15 (2) (C) which enjoins any employee to work overtime is applicable to respondent even though his contract of employment sets out specific working times.

The order to work overtime on the 19th April 2014 was therefore a lawful order.  It was given by the employer, was capable of being carried out by the employee was for the advancement of the employer’s business.  Further, it closely related to the duties of the employee and was not a wrongful act (See ZCTUV Makonese SC 90/02).

It would be undesirable for every employee with a grievance to refuse to obey orders when there are set grievance handling procedures.  That, in my opinion would create a chaotic working environment.

I hasten to add, however that appellant’s case is immediately defeated by the fact that the complainant P.T. Mhiko states that the request to work overtime on 19th April was on condition that respondent would be given equivalent time off.  Section 15 (2) (b) provides that in such a case there should be mutual consent between the employer and employee.  In casu there was no consent.  The order therefore becomes unlawful.  In this the NEC Appeals Committee did not err.

The last issue to consider is whether the order to work the night shift was unlawful as respondent was a day worker.  Section 7 of SI 31 of 2011 clearly distinguishes between day workers and shift workers.  Section 15 (1) thereof defines ordinary hours of work separately for these classes of workers.  What stands out however is that the aggregate number of hours worked and its calculation is what is different and not the times the work is carried out.

The legislature in enacting Section 15 (2) (C) which states that “any employee may at any time be called upon to work overtime after his ordinary hours of work have been completed” notes that such overtime may be a continuation of the ordinary hours of work.  In my opinion this does not preclude an extension beyond 5.00 pm when respondent was supposed to work.  Otherwise how else could this overtime be construed.

I do not think that anything turns on the fact that the suspension letter was delivered before the commencement of the night shift.  Respondent showed a clear intention of not carrying out the order.  That satisfies the offence.  Holding otherwise would leave employers at the mercy of disgruntled employees.

I find therefore that the NEC Appeals Committee erred in exonerating respondent from the Offence of disobeying a lawful order in respect to the night shift and holding that the suspension letter was premature.

2.	 Consideration of Mitigation

The appellant argues that page 6 of the disciplinary hearing minutes clearly shows that mitigatory features and aggravating factors were considered before sentence.  The NEC Appeals Committee is said to have erred in holding that “the appeals board meant something different” and did not therefore consider mitigatory factors.

Respondent points to the letter notifying him of the outcome of his appeal where the managing director states that there were no mitigatory issues raised and that respondent had not insisted on working to show he was still interested in working.

I find that the managing director is unclear about what mitigation is all about.  A perusal of the actual disciplinary minutes, however shows that mitigation was considered together with aggravating factors.  The issues considered included respondent’s length of service of four years, that he is the breadwinner with no house and with several dependants.  Respondent claimed to have misunderstood the overtime arrangement.

In making a finding that mitigation had not been considered by the managing director as the appeals officer, The NEC Appeals committee did not err.  Nothing turned on this however as mitigation was considered in the initial hearing.

3.	 Were proceedings flout with irregularities and effect thereof?

Appellant argues that the Appeals Board erred when it made a finding that the disciplinary proceedings were flout with irregularities without specifying such irregularities and how such prejudiced respondent.  It is further submitted that if any irregularities existed, they were immaterial and did not undermine the procedural fairness of the disciplinary hearing.

Appellant claims to have adhered to the audi alteram partem rule, in particular section 6 (3) and (4) of SI 31 of 2011, the relevant Code of Conduct.  In particular respondent is alleged to have been;

made aware of the rights available to him regarding the hearing.

made aware of the charge against him

given an opportunity to be heard, to call witnesses and have them cross examined and to cross examine appellant’s witnesses.

Appellant avers that it does not have a duty to prepare or assist respondent with his response in the prescribed form.

Respondent’s case is that no investigation report was done prior to the hearing in violation of the relevant Code of Conduct.  I was pointed to the minutes of the hearing wherein appellant accepts the report was not prepared as no investigations were done because it was felt it would be dangerous to keep respondent on the premises due to the nature of products involved.

I was not pointed to the relevant section dealing with the need for an investigation report but appendix 6 (1) is a notification of an allegation/investigation and appendix 6 (2) is the employee’s response to the allegations.  I am satisfied that there was substantial compliance as respondent was notified of the charges preferred against him.  I am not sure of the purpose that could have been served by the investigation report in an offence such as the one in casu.

Even if the procedures were not strictly adhered to, they are not so serious as to vitiate the proceedings (see Tichawana Nyahuma v Barclays Bank SC-67-2005).

4. 	Is there a nexus between insubodination and disobedience of a lawful order and propriety of charges preferred against respondent

Appellant argues that there is a clear nexus between the charges leveled against respondent and the alleged incidences.

Respondent was charged of insubodination, refusal to perform a lawful order/ contractual duty and disobedience of a lawful order given by a person in authority.

The facts giving rise to the charges are as stated above.  Respondent is alleged to have refused to obey orders to work overtime given by a person in authority in two instances.

Insurbodination is said to be a competent charge for disobedience to a lawful order.  The offence charged is said to have legal cognizable affinity with each other.  I was referred to the case of Nyarumbu v Sandvik Mining Construction (Pvt) Ltd SC 31-13 for this.

Respondent argues that the NEC Appeals Board did not err as the offences are different in terms of the Code.

In the relevant Code the offence of refusing to perform a contractual duty is defined as willfully and intentionally declining to perform any of those duties, which he is bound to perform which are part of or incidental to the job he is employed to do.

Disobedience of orders is defined as showing a clear intention that an employee will not carry out the order or does in effect not carry out the order.

Insurbodination is defined as a deliberate refusal to carry out instructions so as to undermine the authority of one’s supervisor or manager.

From the above definitions it is clear that the offences above bear some legally cognisable affinity with one another.  There is merit in this ground of appeal.

5.	Were charges treated separately in the hearing.

Appellant argues that there is no distinction between insurbodination and willful disobedience of a lawful order and refusal to perform a contractual duty and these should not be treated separately or distinguished.

Respondent argues that in failing to deal with the charges separately this amounted to splitting of charges as the two offences emanated from the same set of facts.

Respondent did not submit further on the prejudice suffered thereof.

Once against I am guided that without any prejudice averred and proved to have been suffered respondent’s case is not strong.  I find in favour of appellant on this again.

6.	Was the writing of the letter by L. Chipanga procedurally correct.

I do not need to deal with this issue as respondent admits that there was nothing amiss in the communication emanating from L. Chipanga.

Accordingly the appeal succeeds on grounds 1 (partly), 2, 3, 4 and 5, with costs.

I order as follows,

The decision of the NEC Appeals Board dated 26 August 2013 be and is hereby set aside and is substituted with the following.

“The dismissal of Carrington Mutote be and is hereby confirmed.”

MUZA & NYAPADI, Appellant’s legal practitioners