Davies Ndumiso Sibanda
MANY workers have been dismissed for either failing to submit themselves to the employer’s control or failure to adhere to a lawful order out of ignorance of the law as they will be thinking the employer is victimising them.

In the matter Innscor Africa vs Gwatidzo judgement number SC5of 2015, the employer requested all employees to report for emergency overtime and Gwatidzo did not come as he was on authorized time off.

He was asked to write a report which he refused to do arguing it was an unlawful order.

He was subsequently charged with refusal to work overtime and wilful disobedience of a lawful order.

He was acquitted of the first charge but dismissed of the latter charge.

The Labour Court ordered reinstatement and the employer appealed to the Supreme Court.

The Court said, “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.”

It added:

“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.”

It was held that the order was lawful as it was given by his supervisor who had authority over him.

The court said even the presence of moral excuse for disobedience does not make the employee’s disobedience any less lawful.

This case closely tells us that in cases where workers are asked to write reports by employers or their supervisors, they must do so even if they are not happy with the instruction and further, that the worker’s position can be worsened by his or her conduct during the hearing.

The judgement simply tells workers not to engage in any conduct that can be viewed as defiance of the employer’s authority.

Further, workers should not defy any instructions by the employer which appertains to the character of their contracts or which is within the contemplation of the parties at the time of contracting.

We find guidance in the case Mpumela vs Berger Paints Judgement number 133 of 1999 where Mpumela was ordered to dress properly at work by putting on a jacket and tie.

He refused and was given warnings which he ignored arguing that his contract had no provisions to put on a jacket and tie.

Later when he was being suspended he became rowdy and had to be removed by police.

The court held that despite having no written dress code, the order by the employer was lawful as it properly appertained to the character of the employee’s contract. The court said:

“I am satisfied that in the present case the order issued by the respondent’s manager was an order properly appertaining to the character of the appellant’s contract of employment and was lawful.

“It cannot cogently be argued that as the contract of employment did not mention what type of clothes the appellant was required to wear, the respondent’s manager could not order him to wear appropriate clothes.

“In my view, there is certainly no substance in the argument that the appellant was entitled to wear whatever clothes he wanted to wear.

“If that were the case, the appellant would have been entitled to go to work wearing a jogging suit or track suit, which could hardly have been within the contemplation of the parties at the time the contract of employment was concluded, bearing in mind the fact that the appellant was employed as a bookkeeper.”

This case looks at the facts that not all orders by the employers will be express but implied thus workers have to be able to read such orders and comply.

Another case is the unpopular case with unions and workers is Kandoma vs Black Cosmetics, judgement number SC18/2004 where Kandoma, the workers committee chairman was found reading a book on betting and horse racing and admonished for misconduct.

He got upset and organised a strike against the employer.

When the workers were being disciplined, they alleged Kandoma had organised the strike.

When asked about the strike, Kandoma became abusive and dared the employer to dismiss him.

The employer eventually dismissed him.

He approached the Supreme Court arguing he should not have been dismissed.

It was held that the court ruled that Kandoma’s dismissal was justified bearing in mind his conduct.

The court said, “It must be borne in mind that by entering into a contract of employment, the employee subjects himself to the employer’s control and should behave accordingly.

“Any behaviour on the part of the employee which is wholly inconsistent with that relationship would render the continuance of that relationship untenable and would undoubtedly, constitute a repudiation of the contract of employment by the employee”.

This case is the clearest on the need for workers to submit themselves to the employer’s control, makes it clear that where workers do not submit to the employer’s control, they may be dismissed.

In conclusion, workers have to be careful when they decide to defy the employer’s instructions as they run the risk of being disciplined if the employer’s instructions are lawful.

 Davies NdumisoSibanda can be contacted on: Email: [email protected].