HARARE, SEPTEMBER 25, 2014 & FEBRUARY 19, 2015

B. Peresu, for the appellant

D. Mwonzora, for the respondent


PATEL JA: This is an appeal against the decision of the Labour Court, setting aside the respondent’s dismissal from employment and ordering his reinstatement. 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 authorised 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: 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; 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.

A further aspect, arising from submissions made by counsel at the hearing of the matter, relates to the penalty that was imposed upon the respondent. It was contended on behalf of the respondent that the penalty of dismissal was unduly harsh on the facts of the case and, additionally, that it did not conform with the penalty prescribed under the appellant’s code of conduct. For the appellant, it was argued that the respondent’s misconduct went to the root of his contract of employment and therefore warranted his dismissal. Whatever the merits or demerits of these submissions, the propriety of the penalty on the above grounds was not raised before the Labour Court. Consequently, this is an aspect that cannot be addressed and determined on appeal to this Court.