The duty of subordination

Legal Matters with Arthur Marara

The title has been changed but we are still looking at various acts of misconduct under SI 15 of 2006.

The reason for taking time on this issue is because many conflicts have arisen from this instrument, hence the need for greater explanation into some of the offences.

For a disciplinary committee or authority, there is need to understand the essential ingredients for each of the offences before rushing to charge or even to convict an employee.

Labour matters can be very expensive if not handled appropriately.

This week, we are going to look at an offence that is connected to the common law duty of subordination.

A worker has a common law duty to obey lawful orders given by the employer – Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S).

This duty is codified in Section 4 (b) of S.I. 15 of 2006, which allows dismissal of a worker guilty of “wilful disobedience”.

Gwatidzo (“Respondent”) was employed as a pastry maker in the appellant’s pie division. On October 9, 2005, the employer requested its employees to report for emergency overtime duties.

Except for Gwatidzo, who was on authorised time off, all of the other employees reported for duty.

Upon the Gwatidzo’s return to work, his supervisor asked him to write a report stating why he had not reported for emergency duties.

The employee was later charged with two acts of misconduct: 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 October 26, 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 matter was taken on appeal, with the employer raising twofold grounds: that the court a quo applied the wrong test in holding that the order given to the employee was so unreasonable as to be unlawful; that the court consequently erred in finding that the employee’s refusal to write the report did not constitute wilful disobedience of a lawful order given by his superior.

The duty of subordination is in two parts, namely:

(a) that the worker must obey the lawful orders given by the employer or be obedient; and

(b) that the worker must be respectful to the employer and its business associates or customers.

The employee is obliged to obey the lawful orders given by the employer.

In Matereke v CT Bowring & Associates (Pvt) Ltd, it was held that disobedience means a deliberate refusal to obey an instruction or intentional defiance of an order given by the employer.

In this case, the chairperson of a workers’ committee felt the employer was refusing to promote him into a vacant post – previously occupied by a white person – and proceeded to occupy the office and refused to vacate despite instructions.

He was held properly dismissed for insubordination.

In Samkange v Wycombe Foundation 2001 (1) ZLR 80 (S), a suspended employee had been allowed into his old office to get some personal items but once in refused to get out or hand over keys to the company car he was using, alleging his suspension to be unlawful.

He was held properly dismissed for wilful disobedience. It has also been held that a worker is expected to be respectful to the employer and not use abusive language or insults. In Masukusa v National Foods 1994 (1) ZLR 66 (S), an employee verbally attacked a Messenger of Court serving papers at the workplace as an ‘unrepentant racist and neo-colonialist’ and black managers as ‘Uncle Tom window dressers’ was held lawfully dismissed. In Medical Investments (Pvt) Ltd T/A The Avenues Clinic v Phiri S-266-96, the court upheld the dismissal of a junior employee who had said “f*** off” to a senior employee.

“Wilful”: Wilful disobedience and insubordination, although treated separately in case authority, are two sides of the same coin. An employee will be guilty of insubordination where he or she wilfully disobeys a lawful order.  In Matereke’s case (supra) at 211G-212A, it was held per Gubbay JA that wilful disobedience connotes “a deliberate and serious refusal to obey. Knowledge and deliberateness must be present. Disobedience must be intentional and not the result of mistake or inadvertence. It must be disobedience in a serious degree, and not trivial – not simply an unconsidered reaction in a moment of excitement. It must be such disobedience as to be likely to undermine the relationship between the employer and employee, going to the very root of the contract of employment.”

Similarly, as was observed by Korsah JA in Chironda v Swift Transport 1996 (1) ZLR 142 (S) at 146F: “Surely, the omission to comply with a lawful order is not necessarily born out of a defiance of authority. Unless the proved facts lead irresistibly to an intention to hold authority at defiance, it is a serious misdirection to hold that the appellant’s omission to comply with an order was wilful.”

The term ‘wilful’ therefore means a deliberate refusal to obey or intentional defiance [Chironda v Swift Transport S-28-96 and Mhowa v Beverly Building Society 1998 (1) ZLR 546 (S)]. However, what constitutes ‘serious’ or ‘gross’ disobedience will depend on the circumstances of the particular case, but isolated and minor incidences of insolence by will not suffice [Jamieson v Elsworth 1915 AD 115]. A single instance of instance may justify dismissal where it is of “a very aggravated character” – Medical Investments (Pvt) Ltd T/A The Avenues Clinic v Phiri [supra]. Disobedience or disrespect should, however, not be easily inferred.

In Coh Coh Enterprises (Pvt) Ltd v Matienga & Anor 2001 (1) ZLR 151 (S), the court upheld the decision of the tribunal not to dismiss the chairperson and secretary of a workers’ committee for using “abusive and threatening language” (said ‘will disappear’) against employees who had supported management proposals, on the ground that workers’ meetings involved robust language.

[See also – Velampini v Engineering Services Department Workers Committee for the Engineering Services of the City of Bulawayo 1988 (2) ZLR 173 (H).

In Rande v Hunyani Paper & Packaging (1997) (Pvt) Ltd LC/H/81/05, the court reversed the dismissal of an employee who had been dismissed for making “false accusations” against management, because the employee had qualified his statement by words like “it appears.”

“Lawful” : The second element is that of lawfulness of the order. The order of the employer must be “lawful’’, otherwise the worker is not obliged to obey it. In Matereke v CT Bowring & Associates (Pvt) Ltd 1987 (1) ZLR 206 (S) at 212E-213F, the meaning of what constitutes a lawful order was explained by Gubbay JA as follows: “The second requirement, that the disobedience be directed at ‘a lawful order’ means simply that the employee is not bound to obey an order to do something not properly appertaining to the character or capacity of his contract of employment. 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 he entered the 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. See Bouzourou v The Ottoman Bank [1930] AC 271 (PC) at 276. The position would be otherwise were the employee a fireman, a policeman or a member of the armed forces. See Scoble op cit at p 147; Chitty on Contracts 25 ed vol 2 para 3510.

The existence of a moral excuse for such disobedience will not make the disobedience any less wilful or the order any less lawful. This proposition is well illustrated by the old English case of Turner v Mason (1845) 14 M & W 112; 153 ER 411, in which a domestic servant – quite deliberately because she had made a request which was rejected – absented herself during a night when she should have been on duty. Her plea of justification was that her mother was desperately ill, though it is not clear that she so informed her employer. She was summarily dismissed and the Court of Exchequer upheld the dismissal. PARKE B remarked that even if the employer had been made aware of the cause of her request to absent herself, it would not have been sufficient to justify her disobedience to his order . . . ”

The test for evaluating the lawfulness of an order, as derived from the cases, is whether the order is capable of being carried out by the employee; is for the advancement of the employer’s business; is closely related to the duties of the employee; constitutes an instruction to the employee to perform a lawful act; and is not unreasonable in the circumstances of the case. In ZCTU v Makonese S-141-04, it was held that an order is lawful where it is given by an employer; it is capable of being carried out by worker; it is for the advancement of the employer’s business; it is closely related to the duties of the employee and is not a wrongful act. An order may be unlawful in any of the following circumstances: if it is contrary to any enactment or law – S v Collet 1978 (1) RLR 205 and Martindale School v Jongwe LC/H/165/04. or if it falls outside the scope of the employee’s contract – Muchakata v Netherburn Mine, 1996 (1) ZLR 153 (S).

In Phillemon v OK Bazaars S-22-95, disobedience of an instruction to work overtime.

It may be unlawful if it exposes the employee to immediate harm or threatens the existence of a workers’ committee or registered trade union – Section 104 (4) LA; Chaponda & Ors v Shamva Goldmine LC/H/108/04 and Chironda v Swift Transport 1996 (1) ZLR 142 (S).

The court may enquire into the reasonableness of a worker’s fear.

Further, it may not be wilful disobedience if it is contrary to public policy, is contra bonos mores, or degrading to the employee or grossly unreasonable – Martindale School v Jongwe, supra and Gauntlet Security Services (Pvt) Ltd v Leornard 1997 (1) ZLR 583 (S) where an instruction to an injured worker, to continue working was held unreasonable.

 

 

Gwatidzo’s case

The Supreme Court held that there can be no doubt that the order given to Gwatidzo to write the report was capable of being carried out by him. Additionally, although there was no reporting requirement spelt out in the employer’s code of conduct, it was procedurally necessary for each one of its employees to account for his or her absence in writing so as to maintain discipline at the workplace. In that sense, the order was not only in the interests of and for the advancement of the employer’s business but also closely related to the duties of Gwatidzo. Lastly, it cannot be gainsaid that the instruction given to the employee was one to perform a lawful act.

The order given to Gwatidzo was to put in writing the reason for his non- attendance for overtime duty. He was not asked to explain where he was or what he was doing during his time off. He was simply asked to formalise his non-attendance at work. In the circumstances, that the order cannot be regarded as being an invasion of his privacy or so unreasonable as to be unlawful.

Gwatidzo refused to write the report as instructed because he was of the firm view that the employer had no right to ask him to write the report, particularly as the employer was aware that he was on authorised time off.

He felt that the instruction given by his superior was an invasion of his privacy. Therefore, he deliberately and consciously disobeyed the instruction.

As was made clear in Matereke’s case (supra) at 212G-213C, the existence of a moral excuse for disobedience does not make the employee’s disobedience any less wilful or the employer’s order any less lawful.

Thus, the fact that the employee vehemently believed that he was justified in refusing to obey the order does not diminish the wilfulness of his disobedience or affect the lawfulness of the order.

Nor does it matter that the employer was aware of the cause of the employee’s absence from work.

That awareness did not relieve the employee from his duty to obey the lawful instruction given to him.

The instruction was issued by the employee’s immediate supervisor who held a position of authority over the employer.

Consequently, the employee 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.

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. [See: Innscor Africa Pvt Ltd v Terrence Gwatidzo SC 5/2015]

 

 

 

Arthur Marara is a corporate law attorney practicing in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial and family law, and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]