DISTRIUTABLE (12)

Judgment No. SC 15/04

Civil Appeal No. 91/03

HENRY MANDONGWE v ART CORPORATION LIMITED

SUPREME COURT OF ZIMBABWE

SANDURA JA, ZIYAMBI JA & MALABA JA

HARARE, FEBRUARY 12 & MARCH 11, 2004

R Hanzi, for the appellant

S Hwacha, for the respondent

ZIYAMBI JA: On 3 July 2000, at 2 pm, the appellant received, by hand of a fellow employee, a written instruction from his superior, the Human Resources Manager (“HRM”) of the respondent to process a cheque for terminal benefits of an employee of the respondent before the close of business that day.

Soon after 3 pm, the HRM telephoned the appellant to ascertain that he had received and understood the instruction. The appellant confirmed that he had received the instruction and that it was lying in his tray. He was reminded that the cheque was required to be processed by the end of the day.

The appellant’s response was that he was working on a data processing system with an IT specialist, a Mr Parsons (“Parsons”), and that this work had to be completed to enable the appellant to safely access certain data required by the HRM. The HRM confirmed with Parsons, in the appellant’s hearing, that the project could be put on hold in order to process the cheque and, having done so, reminded the appellant of the urgency of the matter.

At 3.45 pm, the appellant had not complied with instruction and the Finance Manager, having been apprised of the situation, called the appellant and reminded him to do as he had been told by the HRM. Despite the reminders, the appellant did not comply with the order and it is common cause, that by close of business that day, the cheque had not been processed.

Disciplinary proceedings were commenced against the appellant and, on 14 July 2000, he was charged in terms of the Code of Conduct governing the parties (“the Code”), and dismissed from the respondent’s employment, having been found guilty by the disciplinary committee of deliberate and unreasonable refusal to carry out a lawful instruction (insubordination).

An appeal to the Chief Executive Officer in terms of the Code was unsuccessful and the appellant appealed to the Labour Relations Tribunal, now the Labour Court (“the Tribunal”).

Before the Tribunal, it was common cause that the appellant received the instruction from his superior and that he failed to comply with it. The appellant, however, contended that his failure to obey that order was neither deliberate nor unreasonable. His reason for not complying with the instruction given was that he could not interrupt what he was doing as this was likely to result in loss of data which would be harmful to the respondent company.

The Tribunal found the appellant’s action to be both deliberate and unreasonable. Aggrieved by the Tribunal’s decision the appellant now appeals to this Court.

Before us, Ms Hanzi, who appeared for the appellant, submitted that the Tribunal erred in law in coming to a finding that on the facts before it, the appellant refused to carry out a lawful instruction. It was not possible, she submitted, to interrupt what he was doing without causing detriment to his employer, in that valuable payroll data could be lost if the program was interrupted. She submitted that the appellant’s failure to comply with the instruction was not deliberate. On the contrary, she submitted, he was carrying out his duty reasonably and diligently since failure to wind up the first assignment would have resulted in the appellant losing data for all staff of the respondent’s companies, with the further result that the payrolls would be disrupted and employees would fail to receive their salaries on time. The appellant, she submitted, would have been dismissed as having been negligent had he disrupted the payrolls. She submitted that the appellant had acted as a reasonable employee and in the employer’s best interests.

Counsel were agreed that the offence consisted of two essential elements, namely, deliberateness and unreasonableness. In the appellant’s words, “the appellant would have deliberately refused to follow instructions had he satisfied the requirement of mens rea for wilfulness”.

I turn to examine whether the appellant had the mens rea for wilfulness for if he had, his conduct was deliberate.

In R v Tosela¹ the following observation was made by LANSDOWN JP:

“… in general apart from the particular context, an act is wilful which is deliberate or intentional, and not occasioned by ignorance, inadvertence, accident, physical disability or like causes: not only is knowledge present, but volition is brought into activity.”;

and in Horabin v British Overseas Airways Corporation² BARRY J remarked:

“To be guilty of misconduct the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act and yet persists in so acting or omitting to act, with reckless indifference as to what the results may be.”

In our jurisdiction, in Matereke v Bowring & Associates (Private) Limited)³, GUBBAY JA (as he then was), dealing with the meaning of the words “wilful disobedience to a lawful order” in terms of s 3 of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations, SI 371 of 1985, held that:

“The requirement of ‘wilful disobedience’ is not defined in the Regulations. But, having regard to the purpose of this piece of legislation as well as to the common law grounds for summary dismissal for wilful disobedience or wilful misconduct, the words in my view connote 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.”

See also Chironda v Swift Transport 1996 (1) ZLR 142 (S).

As it was held in Chironda v Swift Transport, supra⁴:

“… 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 is wilful.”

The Tribunal found as follows:

“As pointed out earlier, the instruction was not complied with by end of business on Monday as the cheque was only ready by 0800 hours the next day. The question that needs to be answered first is, was appellant’s failure to comply with the instruction deliberate. The answer in my view is yes, and I find that the disciplinary committee’s deliberations on this aspect and which were confirmed by the Chief Executive Officer are beyond reproach. Appellant was given the instruction by 1400 hours. The instruction was clear as to when it should be done. Appellant was aware as to when business closes. He was aware that his work would need to be checked by his colleagues who knock off duty at 16:30 hours. He was therefore aware of the urgency of the matter but nonetheless he left the instruction undone until towards the end of business. He continued with his other duty despite repeated reminders from his superiors that the instruction had to be complied with before close of business. This non-compliance by appellant can only be best described as nothing else but deliberate”.

It emerges quite clearly from the evidence that the appellant’s failure to comply with the order was wilful and therefore deliberate. He acted in open defiance to a lawful order given to him by his employer. As an employee he was obliged to carry out the instructions of his employer in the manner and at the time set by the employer. It was emphasized to him by two managers that the matter was urgent yet he chose to ignore the urgency and to comply in his own time. His excuse that he could not interrupt the salaries program with which he was occupied is totally untenable in the light of the evidence of Parsons and the IT manager that the program could be interrupted at any time without risk.

The element of unreasonableness must next be considered. It is a question of law whether or not on the facts, the appellant had a reasonable excuse for his behaviour. The inquiry is “was his belief so bizarre that no reasonable person would have entertained it”?⁵

The Tribunal reasoned as follows:

“It is common cause that the appellant was working on another assignment on the computer when the instruction was given. It is also common cause that Mr Parsons was a very busy person and difficult to get hold of. It was made clear to the appellant that the cheque had to be ready by the same day even if it was to be collected the next day.

It was however the uncontroverted evidence of N. Karuwo that it was possible for the appellant to bring up another payroll whilst working on his other assignment and without losing his data. Mr Parsons had been made aware of this other instruction and its urgency. According to Mr Parsons’ memorandum dated 4 July 2000, the prioritizing of the appellant’s activities on the afternoon in question was entirely the appellant’s and that Mr Parsons’ activities on the payroll had no bearing on the raising of the cheque in issue.

In the circumstances I find that the appellant’s explanation was unreasonable. He is trying to hide behind Mr Parsons despite Mr Parsons’ damning evidence.”

I agree with the finding of the Tribunal. A reasonable employee in the position of the appellant would not have entertained such a belief as the appellant alleged he did - particularly in view of the fact that he was reminded twice by his superiors to comply with a clear instruction.

Accordingly the finding of the Tribunal that the appellant’s failure to comply with the instruction was both deliberate and unreasonable cannot be faulted.

The appeal must, accordingly, be dismissed but with no order as to costs since the appellant prosecuted this appeal in forma pauperis.

SANDURA JA: I agree.

MALABA JA: I agree.

Chibune & Associates, appellant's legal practitioners

Dube, Manikai & Hwacha, respondent's legal practitioners